Opinion
July 5, 1961
In a negligence action to recover damages for personal injuries, the defendant New York City Transit Authority appeals: (1) from a judgment of the Supreme Court, Queens County, entered March 12, 1959, after a jury trial, upon a verdict of $65,000 in favor of the plaintiff; and (2) from an order of said court, dated December 16, 1959, denying its motion for a new trial upon the ground of newly discovered evidence. Judgment reversed on the facts, and a new trial granted, with costs to abide the event, unless, within 20 days after entry of the order hereon, plaintiff shall stipulate to reduce the verdict to $40,000, in which event the judgment, as so reduced, is affirmed, without costs. Order affirmed, without costs. In our opinion, the jury was free to find that the accident served to aggravate plaintiff's congenital back condition and that such injury seriously impaired his ability to work at physical labor in his former capacity of a gas station attendant. However, the plaintiff did admit that he was capable of doing some light work, and for that reason we hold that the jury's verdict was excessive. Beldock, Acting P.J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.