Opinion
June 24, 1947.
Appeal from Supreme Court, New York County.
The order appealed from sets aside the verdict of a jury in favor of plaintiffs and against defendant for the reason that the verdict is for excessive damages and contrary to the weight of the credible evidence. Our examination of the evidence leads us to conclude that neither ground is tenable.
In a memorandum the learned Trial Justice stated that further grounds for setting aside the verdict were (1) that a witness for defendant made certain disclosures which do not comport with his testimony upon the trial and (2) that a juror "revealed information which made it clear that the step involved in this accident was not at all defective." Neither the statement of the witness nor of the juror appears anywhere in the record, nor can we find any reference to the situation under which the disclosures were made to the court. Apparently these additional circumstances, even if we are to assume that they were proper matters for consideration upon the motion, were never revealed to the parties or to their attorneys before the entry of the order. Such matters dehors the record may not be considered by the trial court upon a motion to set aside a jury's verdict. The order accordingly should be reversed and the verdict of the jury reinstated, with costs and disbursements to the appellants.
Cohn, Callahan, Peck and Van Voorhis, JJ., concur.
Order unanimously reversed and verdict reinstated, with costs and disbursements to the appellants. Settle order on notice.