Opinion
October 31, 1967
Appeal by defendant from an order of the Supreme Court at Trial Term, Washington County, which set aside a jury verdict on the ground of inadequacy and granted a new trial on the issue of damages. The jury verdict found for the plaintiff was in the sum of $1,400. As the trial court pointed out, this was just $183.80 over plaintiff's special damages and grossly inadequate. Appellant argues that if a new trial was correctly granted it should not be limited to damages alone but should include the whole action. We do not agree. It is well settled that where liability and negligence are distinct issues which may be determined separately a new trial on the question of damages alone may be ordered ( Mercado v. City of New York, 25 A.D.2d 75; see, also, Dorsey v. Knickerbocker Hosp., 26 A.D.2d 541; Malanify v. Pauls Trucking Co., 27 A.D.2d 622). There is nothing in the record before us to indicate that the issues of damage and liability were so intertwined as to defeat separate consideration of them or such that the verdict was colored by compromise. Order affirmed, with costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Aulisi, J.