Opinion
January 27, 1943.
Present — Cunningham, Taylor, Dowling, Harris and McCurn, JJ.
Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event, unless the plaintiff shall, within ten days, stipulate to reduce the verdict to the sum of $1,824, 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: Proof sufficient to sustain the finding of the jury as to the item of $946 allowed by them for loss of profits is lacking. The verdict should be reduced accordingly. All concur, except Harris, J., who dissents and votes for affirmance. (As to measure of damages see Steitz v. Gifford, 280 N.Y. 15.) (The judgment is for plaintiff in an automobile negligence action. The order denies a motion for a new trial.)