Opinion
July 6, 1972
Appeal from the Cattaraugus Trial Term.
Present — Del Vecchio, J.P., Marsh, Witmer, Moule and Cardamone, JJ.
Judgment, insofar as it awards plaintiff Vera Wilber the sum of $15,000, unanimously affirmed, with costs. Judgment, insofar as it awards plaintiff Clayton Wilber the sum of $7,500, unanimously reversed on the facts and a new trial granted solely on the issue of damages unless the plaintiff stipulates to reduce the verdict to $4,000 within 20 days from the date of the order to be entered hereon, in which event the judgment is modified accordingly, and as so modified, affirmed. Memorandum: In our view the verdict in favor of plaintiff Vera Wilber finds ample support in the record. However, the verdict in her husband's derivative action is excessive on the proof presented. Since liability was conceded on the first trial, only the issue of damages need be tried again.