Lowenstein v. Lombard Ayres & Co.

Ingraham, J.:

This action was tried at a Trial -Term of the Superior Court before •a jury,- and a verdict was entered for the plaintiff, such verdict ■recorded and the jury discharged. Subsequently, at the same term of the court, the plaintiff made a motion to correct the verdict by increasing the amount so that it should include the interest upon, the plaintiff’s claim, and that motion was denied on the ground, as recited in the order, “ that the power of the court to amend the verdict as requested, is involved in too much doubt to warrant the granting of said motion.”

Although this phraseology is somewhat indefinite, still we think it is apparent that the court refused to exercise any discretion in denying the motion, but denied it because it did not consider that it had power to grant the application. The cases in which the court has power to amend a verdict seem to us to be clear. By section 723 of the Code it is provided that “ the court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading or other proceeding * * * by correcting a mistake in the name of a party, or a mistake in any other respect.” And within the power thus conferred is plainly the power to correct a mistake in a verdict either before or after judgment; and the power to correct a verdict so that the successful party shall recover the amount that the facts as found by the jury justify under the law as determined by the court upon the trial, is well • settled. (See Hodgkins v. Mead, 119 N. Y. 166; Dalrymple v. Williams, 63 id. 362.) In Hodgkins v. Mead the jury were instructed that if the plaintiff was entitled to recover, he was entitled to $848. The jury brought in a sealed verdict by which they found simply a verdict for the plaintiff. After the jury was discharged, but at the same term of the court, the plaintiff made a motion to amend the verdict by adding thereto the words “ for the sum of $848.” The court granted that motion, and it was held by the Court of Appeals that the court had the power to grant the order that it did, and the order was affirmed. ' The sole question for us to determine, therefore, is whether or not the court on the trial distinctly held as a matter of law that the plaintiff was entitled to recover the amount of the damage and interest if the jury found in favor of the plaintiff upon the facts.

On this appeal we cannot review the ruling of the court upon questions of law upon the trial. That ruling must be reviewed on an appeal from-the judgment or a motion for a new tidal. We must assume that the jury intended to follow the ruling of the court and excluded , from their verdict the amount of the interest upon the plantifPs. demand by mistake, if the court charged them expressly that the plaintiff was entitled, as a matter of law, to interest. The court charged the jury that “ the plaintiff rests his right to recovery upon two grounds: I. By reason of a special contract to insure the goods, by which the-plaintiff might, in case of loss, have received from the insurance company the value of the goods; and, II. Breach of a duty as a common carrier in sending the plaintiff’s goods to sea in an unseaworthy vessel, or as may be otherwise stated, a breach of contract as common carriers arising from failure to deliver the plaintiff’s goods.” As to the first" ground of recovery, the court charged the jury that if they found there was a contract to insure^ they should find a verdict in favor of the plaintiff for the sum of $13,072, that being the value of the goods lost, with interest from July 1,1887. Upon the second ground, that if they found that there was no contract to insure, but that there was a failure on the part of the defendant to perform its duty as common carrier, they could find a verdict in favor of the plaintiff for the value of the goods at the port of delivery, and if the plaintiff was entitled to a verdict, he was entitled to recover the value of the goods as appeared upon the testimony at the port of delivery, with interest from July 1, 1887; that this was claimed by plaintiff to amount to the sum already stated as the sum the jury might find in favor of the. plain tiff under the ground on which he seeks to recover. The defendant then requested the court to charge that if the jury should find a verdict for the plaintiff on the ground of- failure to deliver the goods shipped on the Vidette, no interest could be allowed. The court refused so to charge. It thus appears that the court expressly instructed the jury that if the plaintiff -was entitled to recover upon either ground, he was entitled to a verdict for $13,072; being the-value of the goods with interest. And the jury having found a-verdict for the plaintiff, it must' be assumed that they found on the. facts that the plaintiff was entitled to recover; and they were bound to apply the rule of law as stated by the court, and give to-the plaintiff the amount stated by the- court, namely $13,072. And; as before stated, we must assume that the jury intended to follow ■this direction, and inserted the amount of $8,619.85 as the amount, of the recovery by mistake, instead of the correct amount under the charge of the court, to which the plaintiff was entitled. It does not. appear from the record that counsel for the. defendant requested the court to charge the jury that the interest upon either of the grounds of recovery was in the discretion of the jury, or that they could award interest or not as damages, in their discretion. Eor does it appear from the record that the defendant excepted to the charge of the court, that the plaintiff was entitled to interest in case the jury should find for the plaintiff. The only request that the defendant made was that no interest could be allowed, which clearly did not present that point. It does not appear that there was any question submitted to the jury as to the value of the goods at the port of delivery; and from the whole charge it is plain that the question submitted to the jury was whether the plaintiff was entitled to recover the amount as fixed by the evidence.

We think, therefore, that the court had power to correct the verdict so as to state correctly the amount to which the plaintiff was entitled upon a finding in his favor, and that the court should have granted the motion and corrected the verdict accordingly.

The order should, therefore, be reversed and the motion granted, with ten dollars costs and disbursements.

Van Brunt, P. J., Patterson and O’Brien, JJ., concurred; Williams. J.. dissented. .

Order reversed and motion granted, with ten dollars costs and disbursements.

Case Details

Case Name: Lowenstein v. Lombard Ayres & Co.

Court Name: Appellate Division of the Supreme Court of the State of New York

Date Published: Mar 15, 1896

Citation: 2 A.D. 610

Court Abbreviation: N.Y. App. Div.