Opinion
June 7, 1973
Judgment, Supreme Court, New York County, entered on November 29, 1972, unanimously modified, on the law and on the facts, and a new trial granted on the issue of damages as between the plaintiff-respondent infant and the defendants-appellants, and otherwise affirmed, with $60 costs and disbursements to abide the event, unless the plaintiff-respondent infant by her guardian within 20 days of service upon her by the defendants-appellants of a copy of the order entered hereon, with notice of entry, serves and files in the office of the clerk of the trial court a written stipulation consenting to reduce the verdict to $250,000 and to the entry of an amended judgment in accordance therewith, in which event the judgment as so amended and reduced is affirmed, without costs and without disbursements. We can neither overlook nor condone the conduct of plaintiff's counsel in seeking to inflame the jury. And we believe the court could have shown greater firmness in dealing therewith. A fair issue of fact was presented and we do not find anything in the record to show that the jury reached its conclusion on liability as a result of improper influence. It is otherwise with the question of damages. We find that these were inflated to the extent indicated in the disposition.
Concur — Markewich, J.P., Nunez, Lane, Steuer and Capozzoli, JJ.