Second Department, May, 1916. [Vol. 172. WILLIAM DUKE, Respondent, Appellant, v. JAMES C. FARGO, as President of the AMERICAN EXPRESS COMPANY, Appellant, Respondent. WILLIAM GLYNN, Respondent, Appellant, v. JAMES C. FARGO, as President of the AMERICAN EXPRESS COMPANY, Appellant, Respondent. Second Department, May 12, 1916. Practice trial - setting aside of verdict - reduction of verdict – damages. Where a motion is made at the trial to set aside a verdict as excessive, and for a new trial, the court may, in its discretion in a proper case, set aside the verdict, unless the plaintiff consents to accept a lesser amount declared by the trial court; but the court has no authority to “reduce” the amount of a verdict absolutely against the will of the plaintiff, as such action would invade the province of the jury. Evidence in two actions for personal injuries examined, and held, that the verdicts were not so excessive as to require interference by the court. CROSS-APPEALS in each case by the plaintiffs, William Duke and William Glynn, and the defendant, James C. Fargo, as president, from two judgments of the Supreme Court, one in each case, in favor of the respective plaintiffs, entered in the office of the clerk of the county of Kings on the 20th day of January, 1916, upon the verdicts of juries in the first case for $1,500, reduced by the court to the sum of $1,000, and in the second case for $2,750, reduced by the court to $1,500, and also an appeal is taken from two orders, one in each case, entered in said clerk's office on the 7th day of February, 1916, denying defendant's motion for a new trial made upon the minutes in each case. The defendant appeals from the whole of said judgments and orders. The plaintiffs appeal from said judgments in so far as they are for less amounts than the verdicts rendered by the juries, and also from the orders of the court reducing the verdicts. Henry M. Dater [Edward J. Fanning and Jay S. Jones with him on the brief], for the plaintiffs. John G. Milburn, Jr. [Thomas S. Doughty with him on the brief], for the defendant. App. Div.] Second Department, May, 1916. These two actions were tried as one, and come before this court on appeal upon one record. They were brought by the several plaintiffs to recover damages for personal injuries resulting from the same accident, as to which the defendant did not dispute liability for negligence. The only question involved at the trial was the amount of damages properly recoverable by the several plaintiffs. The jury found a verdict for the plaintiff Duke in the sum of $1,500, and for the plaintiff Glynn in the sum of $2,750. Thereupon the defendant moved to set aside the verdicts for each plaintiff, and for a new trial, under section 999 of the Code of Civil Procedure, and particularly on the ground that the verdicts were in each case excessive. The trial court denied the motion, and the defendant excepted. Then the court of its own motion "reduced " the amount of the verdicts to the sum of $1,000 for the plaintiff Duke, and the sum of $1,500 for the plaintiff Glynn, and both plaintiffs excepted. Formal orders were entered in each case denying the defendant's motion for a new trial. Judgments were entered in each case for the amounts of the "reduced " verdicts, with costs. The several plaintiffs appeal from the order of the trial court reducing the verdicts, and from the judgments so far as they conform to the order of the trial court reducing the amounts of the verdicts. The defendant appeals from each judgment and from the orders denying the motion for a new trial in each case. The situation thus presented on this appeal is quite anomalous. The damages recoverable in each case were necessarily unliquidated, and fixable only by the verdict of the jury, unless the plaintiffs consented to a fixation by the court. According to long-settled practice, where a motion is made at the trial to set aside a verdict as excessive and for a new trial, the court may in its discretion, in a proper case, set aside the verdict unless the plaintiff consents to accept a lesser amount declared by the trial court. No precedent is to be found authorizing the court to "reduce" the amount of a verdict absolutely against the will of the plaintiff. The question seems to be wholly uncovered by direct authority in this State- at least none is cited, and I have found none myself. However, this Second Department, May, 1916. [Vol. 172. question was passed upon in Barber v. Maden (126 Iowa, 402), where it was held, in a practically similar case, that the trial court was without power to reduce the amount of a verdict for personal injuries absolutely and without the consent of the plaintiff. The ground of that decision was that such an order invaded the province of the jury. We think that the action of the trial court was error. The verdicts as rendered should be reinstated, if the trial court did not err in its orders denying the defendant's motion for a new trial in each case on the ground that the verdicts were excessive. The defendant offered no proofs as to the nature and extent of the personal injuries of the several plaintiffs. The cases went to the jury upon the uncontradicted proofs of the several plaintiffs. The accident occurred on March 7, 1914, and the actions were tried on January 17, 1916. The plaintiff Glynn testified to severe and painful injuries which incapacitated him for several weeks, and required medical aid for several days. He further testified that from the time of the accident up to the time of the triala period of nearly two years - he continued to suffer severe pain in his body at the seat of his former injury, and that this pain was so severe as to oblige him to change his avocation from that of a bricklayer to that of a trolley car conductor, which was of a considerably lower rate of wages. His physician testified to the injuries at the time of the accident. The latter examined the plaintiff again on the morning of the trial, and found no evidence of continuous injury other than the plaintiff's complaint of muscular stiffness and pain. The physician testified, without objection by the defendant, in part as follows: "I think very likely he still has pain. It is a thing you cannot demonstrate, but a severe injury to the muscles of the back, of that kind, will persist for a good many years. Q. How long do you think, in your opinion, that will continue? A. Two or three years yet. Q. That is your best judgment of it? A. Yes, sir." If the jury accepted the plaintiff's proofs, and there was no evidence to the contrary, the verdict for the sum of $2,750 as damages to the plaintiff Glynn cannot be said to be so excessive as to require interference by the court on that ground alone. As to the plaintiff Duke, the situation is similar. His verdict was for $1,500. His testimony was to App. Div.] First Department, May, 1916. the effect that his injuries practically incapacitated him for about sixteen months, and that he still continued to feel pain at the seat of his former injury. There was no satisfactory testimony as to the probable period of the continuance of pain; but assuming that it would disappear shortly, yet the amount of the jury's verdict in his favor is not so largely excessive — if at all excessive as to require interference. We are of opinion, therefore, that the orders denying defendant's motion for a new trial should be affirmed, and that the verdicts of the jury should be reinstated, and the judgments modified accordingly, and, as modified, affirmed, with one bill of costs on these appeals. Present- JENKS, P. J., THOMAS, CARR, MILLS and RICH, JJ. Orders denying defendant's motion for new trial affirmed, verdicts reinstated, and judgments modified accordingly; and as so modified, judgments and orders unanimously affirmed, with one bill of costs on these appeals. H. CLAY HOWARD, Respondent, v. EDWARD N. BREITUNG and Others, Copartners, Doing Business under the Firm Name and Style of BREITUNG & COMPANY, LTD., Appellants. Contract First Department, May 19, 1916. construction-action for breach of contract - admissibility motion to strike out irrelevant allegations of the of parol evidencecomplaint. -- Provisions of a contract under which the plaintiff had been employed to enter into negotiations for a contract on behalf of the defendants, and under which he was to be employed, examined, and held, that the provisions thereof as to the right of abandonment by the defendants are not ambiguous, and that, therefore, in an action by the plaintiff for a breach of the contract, allegations of the complaint tending to explain the provisions of the contract with respect to the abandonment thereof by the defendants, and the effect of such abandonment, should be stricken out as irrelevant, since proof thereof by parol evidence would not be admissible. First Department, May, 1916. [Vol. 172. APPEAL by the defendants, Edward N. Breitung and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of March, 1916, denying their motion to strike out paragraph III of the complaint as irrelevant and redundant. Otto C. Sommerich, for the appellants. Alton B. Parker, for the respondent. LAUGHLIN, J.: This is an action for damages for the breach of a contract in writing made between the plaintiff and Breitung & Company, Ltd., the name under which the defendants were conducting business as copartners. It is recited in the contract that the defendants had expended time and money in securing the enactment of a law authorizing the President of Peru to issue bonds and to enter into a contract for irrigation and colonization, and that the defendants were desirous of obtaining the contract and to that end employed the plaintiff to take preliminary steps and to enter into negotiations for the contract upon the terms therein stated. The duties which the plaintiff was to perform are specifically set forth in the contract. His first duty was to organize an efficient corps of experts, consisting of an irrigation engineer, a soil expert, a chief quartermaster or contractor to construct the irrigation works according to plans and estimates submitted by Peru and approved by the engineers of the defendants, to ascertain upon what terms such experts could be employed and upon what terms acceptable colonists could be secured, and in the event that colonists with sufficient funds to be self-sustaining could not be procured, to become familiar with the provisions of law with respect to agricultural credit banks in order to have the law amended if necessary. It was provided that it should be the duty of the plaintiff after completing said organization to give his time and energies to the formation of a syndicate, to seek, obtain and execute the contract with Peru; and after the formation of the syndicate, to hold himself in readiness to go to Peru for the purpose of securing the contract. It was further provided |