Cady v. Third Avenue R. R. , 60 N.Y.S. 269 ( 1899 )

Freedman, P. J.

I am in favor of a reversal of the judgment in this action solely upon the ground that the verdict is largely in excess of the legal damages proven to have been sustained by the plaintiff.

The damages shown to have been received to the wagon of'the plaintiff were proven to be the sum of fifty-six dollars and eighty-five cents. The horse of the plaintiff was shown to have been lamed by the collision with the car, but all the testimony as to the amount paid the veterinary surgeon for treating the animal, and as to the time the horse remained unfit for use by reason of its lameness was either stricken from the record or withdrawn from the consideration of the jury upon the application of the defendant and without objection being made thereto by the plaintiff. It appears that after the injury to the horse, the plaintiff purchased another one, for which he paid $150.

The jury rendered a verdict for the sum of $250. At the time the verdict was rendered, the defendant moved to set it aside upon the ground, among others, that the amount was excessive and was not "proven in the case. This motion was denied and the defendant duly excepted thereto.

The price paid for the new horse was not an item to be considered as forming a part of the damages sustained by the plaintiff, especially as it was shown that the injured horse subsequently fully recovered from its lameness.

The damages proven did not justify a verdict in excess of the sum of fifty-six dollars and eighty-five cents, and for that reason the" judgment should be reversed, new trial ordered, with costs to appellant to abide the event.

MaoLean and Leventkitt, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.