Opinion
March 30, 1937.
Appeal from Supreme Court, Second Department.
Myron D. Levy, for the appellant.
William Harvey Smith [ H. Schieffelin Sayers with him on the brief], for the respondent.
The action was for breach of contract to recover damages for public indignity and humiliation suffered as a result of the acts and statements of defendant's special officer which resulted in plaintiff's being thrown from a rocking chair by another of defendant's patrons. Plaintiff was awarded nominal damages after a trial before a Municipal Court justice without a jury. Plaintiff moved to set the decision aside. The motion was granted and a new trial ordered, with a jury. Upon appeal to the Appellate Term from the judgment in favor of plaintiff after such new trial, defendant attempted to bring up for review the order granting a new trial. The Appellate Term reversed the judgment and order and reinstated the original decision granting only nominal damages, holding that the order granting the new trial was defective for the reason that upon the motion made after the trial the plaintiff failed to point out in the record any error in form or substance which justified the granting of a new trial.
By failure to appeal from the order granting the new trial, and proceeding with the new trial, the respondent waived its right to have such order reviewed upon appeal. (6 Carmody's New York Practice, § 87; Grunberg v. Blumenthal, 66 How. Pr. 62; Russell v. Randall, 123 N.Y. 436; Greenberg v. Berman, No. 1, 209 App. Div. 894; Goodstein v. Feinberg, 137 N.Y. Supp. 875; Stein v. Kesselgrub, 45 Misc. 652.) In our opinion, the amount allowed the plaintiff is not excessive.
The order of the Appellate Term should be reversed on the law, with costs, and the judgment of the Municipal Court affirmed.
LAZANSKY, P.J., JOHNSTON, ADEL, TAYLOR and CLOSE, JJ., concur.
Order of Appellate Term reversed on the law, with costs, and judgment of the Municipal Court of the City of New York, Borough of Brooklyn, unanimously affirmed.