Powers v. Hanford

Hardin, P. J.:

It was optional with the plaintiff to give the stipulation provided for in the order. It does not appear whether the stipulation has keen given. If the stipulation was given within ten days after service of a copy of the decision to reduce, then the judgment, as thus redticed, was to be affirmed, without costs. If the plaintiff failed to give the stipulation, then the judgment, by the order, was to be reversed.

Section 3063 of the Code of Civil Procedure confers upon the County Court power to affirm or reverse a judgment of a justice in whole or in part for errors of law or of fact.

. In Holmes v. Jones (121 N. Y. 467) the power to reduce a verdict conditionally and affirm a judgment thereon as modified by a stipulation required of the plaintiff, was under consideration, and the authorities supporting the power are cited, and in the opinion it was said : “We see no reason to doubt that such conditional reduction of damages can be made in all actions of tort where the damages rest in the discretion of the jury.”

The case of National Board of Marine Underwriters v. National Bank of the Republic of New York (146 N. Y. 64) is distinguishable from the case to which reference has already been made. It was an action upon contract, and it was held to be erroneous to first affirm the judgment and then to reverse it in all respects.

The case of Sourwine v. Truscott (25 Hun, 67), cited by the appellant, was a case where a trial had been had in the County Court and a verdict rendered, and the County Court fell into the error of having ordered absolutely a reduction of the verdict.

We are of the opinion that the court had power to make the order from which the appeal is taken, and we see nothing in the appeal book which indicates that it improperly exercised its discretion. We think the order should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.