Gormley v. Gasiorowski

• Decision Date: 31 January 1933
• Docket Number: No. 64.,64.
• Parties: GORMLEY et al. v. GASIOROWSKI.
• Court: New Jersey Supreme Court

164 A. 440

GORMLEY et al.

v. GASIOROWSKI.

No. 64.

Court of Errors and Appeals of New Jersey.

Jan. 31, 1933.

Appeal from Circuit Court, Essex County.

Action by Russell Gormley, by his next friend, Nathan W. Gormley, and Nathan Gormley, individually, against Richard Gasiorowski. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Green & Green, of Newark (David Green and Nelson K. Mintz, both of Newark, of counsel), for appellant.

Feit & Feit, of Elizabeth (Louis J. Feit, of Elizabeth, of counsel), for respondents.

HEHER, J.

Defendant appealed from the judgment of the Essex circuit court in favor of plaintiffs, in an action brought to recover compensation for personal injuries sustained by the infant plaintiff as the result, it is alleged, of defendant's negligent operation of an automobile, and for the consequent damages sustained by his father.

There was a verdict in favor of the infant for $250, and in favor of his father for $500. The trial judge allowed the infant plaintiff a rule to show cause why the verdict in his favor should not be set aside in respect of damages only. Defendant obtained a rule to show cause why the verdict as to both plaintiffs should not be set aside on the ground that it was contrary to the weight of the evidence. The trial judge made the infant plaintiff's rule absolute, and granted a new trial as to damages only. He discharged defendant's rule.

At the retrial of the infant's action, defendant moved that the "rule be enlarged so that it be a trial de novo on the entire issue." The motion was denied.

There was a verdict for the infant plaintiff of $4,000, which was reduced on defendant's rule to show cause to $2,500. Plaintiff consented to the reduction, and judgment wag entered in that sum.

It is now contended that the circuit court erred in discharging defendant's rule to show cause, and in making absolute the infant plaintiff's rule in respect of damages only, and in refusing to enlarge the prior order for a new trial to include the entire issue.

The rulings complained of cannot be reviewed on appeal. Rule 131 of the Supreme Court directs that in case a new trial is granted it shall only be a new trial of the question or questions with respect to which the verdict or decision is found to be wrong, if separable. Rule 132 provides that when a new trial is ordered because the damages are excessive or inadequate, and for no other reason, the verdict shall be set aside only in respect of damages, and...