Opinion
May 18, 1967
Appeal from the Steuben Trial Term.
Present — Williams, P.J., Bastow, Goldman, Del Vecchio and Marsh, JJ.
Judgment insofar as it awards plaintiff damages in the amount of $25,000 based on the second cause of action, and order insofar as it denies defendant's motion for a new trial as to that cause of action, unanimously affirmed; judgment insofar as it awards plaintiff damages in the amount of $50,000 based on the first cause of action, and order insofar as it denies defendant's motion for a new trial as to that cause of action, unanimously reversed on the law and facts and a new trial granted on the first cause of action to ascertain and determine the amount of the damages only, with costs to appellant to abide the event, unless the plaintiff shall, within 10 days, stipulate to reduce the verdict on the first cause of action to the sum of $30,000 as of the date of the rendition thereof, in which event the judgment is modified accordingly and, as so modified is, together with the order, affirmed, without costs of this appeal to either party. Memorandum: Liability was established as to both causes of action. However the amount awarded under the first cause of action was excessive. Therefore, if the reduction is not accepted by the plaintiff, upon the retrial, because of our finding that liability was established, the inquiry should be limited to the amount of damages only.