Opinion
July 1, 1971
Appeal from the Wayne Trial Term.
Present — Goldman, P.J., Marsh, Witmer, Cardamone and Henry, JJ.
Judgment and order unanimously reversed on the facts and a new trial granted only on the issue of damages on the counterclaim, with costs to the appellant to abide the event, unless within 10 days hereof defendant stipulate to reduce the verdict to the sum of $3,500 as of the date of its rendition, 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: The verdicts for plaintiff on the complaint and for defendant on the counterclaim are consistent. Defendant has not pressed his appeal against the judgment on the verdict for plaintiff, and it should be affirmed. Defendant admits that the verdict for him upon the counterclaim is inconsistent with the facts and includes duplicate values and is excessive, and consents to its reduction to the sum of $4,644, plus $120 which he speculates was improperly omitted. There are several possible proper reasons for such omission by the jury, and we find insufficient reason to add it to the verdict. In view of the obvious errors in the verdict, with no clear path for its correction, the judgment thereon should be reversed and a new trial granted on the issue of damages only, but with leave to plaintiff to amend its defense to the counterclaim and put defendant to his proof as to all the details of his claim for damages, less appropriate credits to plaintiff, unless within 10 days from entry of the order hereon defendant stipulate to accept a reduction of the verdict to the sum of $3,500 as of the date of its rendition on the record herein, considering in light of matters not fully explored on the trial, it appears that a verdict in an amount greater than $3,500 would be excessive.