Mueller v. Rockaway News Supply Co. , 281 A.D. 688 ( 1952 )

In an action by the infant plaintiff to recover damages for personal injuries and by his father for medical expenses, the jury rendered a verdict in favor of the infant plaintiff for $35,000 and in favor of his father for $5,000. Defendant Rockaway News Supply Co., Inc., appeals from the judgment entered thereon. Judgment reversed on the facts and a new trial granted, with costs to abide the event, unless within twenty days from the entry of the order hereon plaintiffs stipulate to reduce the verdict to $20,000 for the infant and to $500 for the father. In the event the plaintiffs so stipulate, the judgment, as so reduced, is affirmed, without costs. In our opinion the amount of the verdict is excessive and against the weight of the evidence. Nolan, P. J., Carswell, Johnston and MaeCrate, JJ., concur; Wenzel, J., concurs for reversal but dissents insofar as a new trial is granted and votes to dismiss the complaint, with the following memorandum: I find no basis for a determination that there was negligence on the part of the driver of the appellant’s truck. The deposition of the driver of the mail truck and his testimony on the trial indicate that be alone was negligent.