George E. Powers, Appellant, v. George R. Hanford, Respondent

George E. Powers, Appellant, v. George R. Hanford, Respondent. A County Court may, on an appeal^ from a justice of the peace, reduce the damages conditionally. It is within the power of a County Court to make a conditional reduction of damages in an action of tort, where the damages necessarily rested in the discretion of the jury. Appeal by the plaintiff, George E.- Powers, from an order of the Gounty Court of the county of Jefferson, entered in the office of the clerk of the county of Jefferson on the 22d day of April, 1895, providing that the judgment recovered by the plaintiff in a Justice’s Oourt should be reversed unless he elect within ten days after service of a copy of the decision to reduce the damages in the judgment to five dollars and file notice of such election with the county clerk, in which case the judgment was to be modified by reducing the damages to five dollars, and as modified affirmed, without costs. This action was commenced in a Justice’s Oourt. Plaintiff’s complaint alleged that the defendant, on the eleventh of September, “ wrongfully and unlawfully broke the outer door and fastenings of the plaintiff’s said dwelling house, and forcibly and against the will of plaintiff entered the same with a force of men, and broke and. injured the plaintiff’s furniture; carpets and fixtures to plaintiff’s house and the outer fastenings thereof, and carried off a piano and furniture then being in the possession of plaintiff. The said wrongful acts were willful and intentional and were done in opposition to-the no.w and then and there expressed wishes of the plaintiff and of plaintiff’s wife, who was at the time in the charge of the said dwelling house, and the plaintiff claims exemplary damages.” The complaint demanded judgment for forty-nine dollars, i The defendant appeared and put in a general denial, and also set úp a contract, for the sale by the defendant to the wife of the plaintiff, of a piano for the sum of $300, and that the contract was in writing, and reserving the title to the piano in the defendant until the said $300 was paid. The .jury in the Justice’s Court rendered a verdict for forty-three dollars. The defendant took an appeal to the County Court, and on the 23d of April, 1895, the County Court made an order which contained the following language: “Judgment reversed, unless the respondent elect, within ten days after service of copy of decision, to reduce the damages in the judgment to five dollars, and files notice of such election with the County Clerk, in which case the judgment is modified by reducing the damages to five dollars, and as modified affirmed without costs.” From that order the plaintiff appeals to this court. Ro judgment has been entered. Wayland F. Ford, for the appellant. Arthur L. Chapman, for the respondent. [MAJORITY — Hardin, P. J.:] Hardin, P. J.: It was optional with the plaintiff to give the stipulation provided for in the order. It does not appear whether the stipulation has keen given. If the stipulation was given within ten days after service of a copy of the decision to reduce, then the judgment, as thus redticed, was to be affirmed, without costs. If the plaintiff failed to give the stipulation, then the judgment, by the order, was to be reversed. Section 3063 of the Code of Civil Procedure confers upon the County Court power to affirm or reverse a judgment of a justice in whole or in part for errors of law or of fact. . In Holmes v. Jones (121 N. Y. 467) the power to reduce a verdict conditionally and affirm a judgment thereon as modified by a stipulation required of the plaintiff, was under consideration, and the authorities supporting the power are cited, and in the opinion it was said : “We see no reason to doubt that such conditional reduction of damages can be made in all actions of tort where the damages rest in the discretion of the jury.” The case of National Board of Marine Underwriters v. National Bank of the Republic of New York (146 N. Y. 64) is distinguishable from the case to which reference has already been made. It was an action upon contract, and it was held to be erroneous to first affirm the judgment and then to reverse it in all respects. The case of Sourwine v. Truscott (25 Hun, 67), cited by the appellant, was a case where a trial had been had in the County Court and a verdict rendered, and the County Court fell into the error of having ordered absolutely a reduction of the verdict. We are of the opinion that the court had power to make the order from which the appeal is taken, and we see nothing in the appeal book which indicates that it improperly exercised its discretion. We think the order should be affirmed. All concurred. Order affirmed, with ten dollars costs and disbursements.