Starr v. Ritchie

The award of damages was inadequate where tested by the apparent probabilities as to the defendant’s express or implied promise to pay for the item of resetting, and the presiding justice’s estimate of the relative credibility of two opposed witnesses upon the issue of an express agreement may well have led to the further strengthening of the case for the plaintiff. The advantages possessed by the justice below in hearing the - testimony as given enters to some extent into the inquiry upon a review of his direction of a new trial after verdict (Lund v. Spencer, 42 App. Div. 543, 59 N. Y. Supp. 752), and the order is not to be disturbed unless actual and obvious injustice has resulted from this exercise of discretion at the trial (Id.). It appears to us that there was not only no injustice to the defendant in this case, but that the trial justice’s discretion was quite commendably exercised.

Order affirmed, with $10 costs and disbursements. All concur.