Simms v. Calcagnino

This is an appeal from a judgment entered on the verdict of a jury and from an order denying a motion for a new trial.

We have carefully examined the testimony and rulings in this case, and are of the opinion, that the plaintiff should recover the amount claimed by him on March 15, 1897, as appears by the defendant’s exhibit “ 2 ” of $538.22, with interest.

If the plaintiff consents to reduce the verdict to that amount within five days from the entry of the order on this appeal, the judgment and order appealed from will be affirmed, with costs; otherwise we think that justice requires, that the judgment and order appealed from should be reversed and a new trial granted, with costs to abide the event.

Fitzsimons, J., concurs.

Judgment and order reversed and new trial granted, with costs to abide event.