Opinion
October 25, 1955.
The Trial Judge set aside a jury verdict for $4,000 in favor of infant plaintiff and ordered a new trial unless plaintiff stipulated to reduce the verdict to $2,105. Plaintiff refused to stipulate and on this appeal seeks a reinstatement of the verdict. On its cross appeal defendant contends the trial court should have granted its motions to dismiss the complaint. The evidence as to infant plaintiff's injuries does not warrant disturbing the discretion exercised by the Trial Judge ( Kligman v. City of New York, 281 App. Div. 93). In affirming we are constrained to note that an examination of the record fails to disclose satisfactory proof of notice, either actual or constructive. Also, the only evidence with respect to the manner in which the accident occurred appears to be the unsworn testimony of the infant plaintiff, which is inadmissible in the trial of a civil action and of itself will not sustain a verdict ( Ranofsky v. Frank, 208 App. Div. 213; Napiearlski v. Pickering, 278 App. Div. 456). However, plaintiff should be given an opportunity to present any additional proof which may be available to him. Order unanimously affirmed.
Concur — Bastow, J.P., Botein, Rabin and Cox, JJ.