Opinion
January 10, 1966
In a negligence action to recover damages to person and property, defendants appeal, by permission of this court, from an order of the Appellate Term of the Supreme Court, dated April 9, 1965, which modified a judgment of the Civil Court of the City of New York, Queens County, entered June 27, 1963, after a nonjury trial, by increasing the 6 cents damages awarded to plaintiff James De Franco to $2,500, and the 6 cents damages awarded to plaintiff Marie De Franco to $800. Order of the Appellate Term modified by directing a new trial, with costs to abide the event, unless within 10 days from the entry of the order hereon the defendants stipulate to modify the judgment of the Civil Court so as to increase the award of damages therein to plaintiff James De Franco to the sum of $2,500 and to plaintiff Marie De Franco to the sum of $800. As so modified, the order is affirmed, without costs. In our opinion, assuming that the plaintiffs might be entitled to the increase in the nominal damages awarded, as was found by the Appellate Term in sound discretion a new trial should have been directed unless defendant stipulates to pay such increase in damages ( Masso v. Hanscom Realty Corp., 254 App. Div. 756). Ughetta, Acting P.J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.