Tucker v. Jorgensen

Memorandum by the Court. Appeal from a judgment of the Supreme Court entered February 14, 1969 in Schenectady County upon a jury verdict in favor of the plaintiffs and from an order entered February 17, 1969 which denied the motion to set aside the verdict. The infant plaintiff suffered injuries in the area of her mouth when she suffered a fall on premises owned by the appellants. Assuming that the appellants are correct in urging that the trial court erred in admitting certain testimony, it does not appear that such error would be so prejudicial as to require a new trial. The record establishes that the infant plaintiff suffered permanent injuries to her teeth and it does not appear that the verdict in her favor was excessive. In ithe derivative action the proof amounted to $150, and therefore the judgment must be reduced to that amount. Judgment and order, in respect of the derivative cause of action only, reversed, on the law and the facts, and a new trial of said derivative cause of action ordered unless, within 20 days after entry of the order hereon, plaintiff shall stipulate to reduce the amount of the verdict upon said derivative cause of action to $150, in which event orders and judgment upon said derivative cause of action, as so reduced, affirmed; failing such stipulation such new trial of the derivative cause of action to be restricted to the issue of damages; and judgment and order in all other respects affirmed, with costs. Herlihy, *1081P. J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur in memorandum by the court.