#### John Sloane, Plaintiff, *v.*John McCauley, Defendant.

(Supreme Court, New York Trial Term,

January, 1901.)

1. Negligence — Insufficient damages.

Where a workman, earning a dollar and a half a day, receives a permanent injury to his kneecap, requiring him to spend two months in a hospital and disabling him for two months more, a verdict, against the person who caused the injuries, for six cents is inadequate and must be set aside.

*2.*New trial — Terms, when granted on an error of the jury.

Where a motion for a new trial is based upon an error of the jury, a new trial will only be granted upon payment of the costs of the first trial.

Motion by the plaintiff to set aside the verdict of the jury in his favor for six cents’ damages, and for a new trial, npon the ground, among others, that the damages are insufficient.

Action to recover damages for a personal injury claimed to have been sustained, in consequence of the defendant’s negligence.

Jeroloman *&*Arrowsmith (John Jeroloman, of counsel), for motion.

Frederick J. Swift, opposed.

Giegerich, J.

The jury by their verdict having determined the plaintiff’s right to a recovery, it was their duty to award such damages as would compensate him for the injuries he received. Brown v. Foster, 1 App. Div. 578; Aiello v. Aaron, N. Y. L. J., March 6, 1900, per Gildersleeve, J. It appears from the plaintiff’s evidence, without contradiction by the defendant, that the former received a fracture of the right kneecap; that he suffered great pain; that the injury is a permanent one; that in consequence of the injury he was unable to work for a period of about 120 days, two months of which time having been spent in a hospital, and that when the accident occurred he was earning one dollar and fifty cents per day. It is obvious that in assessing the plain*653tiff’s damages at six cents the jury did not take into consideration the items of damage whereby the plaintiff’s right to a compensatory award is to be measured in an action of this character. “ These are,” said the court in Brown v. Foster, *supra,*at p. 579, *“*the bodily injuries sustained, the pain suffered, the effect on the health of the sufferer according to its degree and its probable duration, the expenses incidental to attempts to effect a cure or to lessen the injury, the pecuniary loss sustained through inability to attend to a business, as to which again the injury may be temporary or permanent.” The damages being unquestionably insufficient, the verdict must be set aside and a new trial ordered. It is a rule that where the motion for a new trial is based upon an error of the jury it will be granted only on payment by the party making it of costs of the former trial as a condition to the granting of the favor. Brown v. Foster, *supra;*O’Shea v. McLear, 15 Civ. Pro. 69; 16 N. Y. St. Repr. 482. The court in O’Shea v. McLear, *supra,*commenting upon the practice, said: “ This rule seems to be too firmly established to be departed from, even in a case of seeming hardship.” Motion granted upon payment by the plaintiff, within thirty days after notice of entry of the order, of the costs of the former trial.

Motion granted upon payment by plaintiff, within thirty days after notice of entry of order, of costs of former trial