#### Morris Perlman, an Infant, by Jacob Perlman, His Guardian ad litem, Appellant, *v.*The Brooklyn Heights Railroad Company, Respondent.

(Supreme Court, Appellate Term, First Department,

November, 1912.)

Appeal — setting aside verdict in action for personal injuries — verdict.

Where, in an action for personal injuries to an infant, two verdicts each for fifty dollars in favor of plaintiff have been set aside as against the weight of. evidence, an order setting aside a third verdict for a like amount on the same ground will be reversed and the judgment reinstated.

Appeal by the plaintiff from an order of the Municipal Court of the city of Hew York, borough of Manhattan, second district.

Charles S. Rosenthal, for appellant.

George D. Yeomans (James W. Carpenter, of counsel), for respondent.

*169Guy, J.

Plaintiff appeals from an order setting aside the verdict of a jury in favor of plaintiff (an infant) for fifty dollars in an action to recover for personal injuries. Two previous juries rendered verdicts for the same amount in favor of plaintiff, and each of said verdicts was set aside by the trial justice as against the weight of evidence. The plaintiff-appellant contends on this appeal that three successive juries having found in favor of the plaintiff for the same amount, this verdict cannot be again set aside as against the weight of evidence.

The respondent cities, in opposition to plaintiff’s contention, the decision of the Appellate Division, First Department, in the case of Meinrenken v. New York Central & H. H. R. R. R. Co., 103 App. Div. 319, where, in setting aside a third verdict, the court, Mr. Justice McLaughlin writing the opinion, says: “ This judgment is based upon a verdict which, in the opinion of this court, the jury had no right to render, and it has so declared on the two previous appeals * * *. It matters not, therefore, how many times a jury may render a verdict upon this evidence, a judgment based thereon cannot be permitted to stand if the court discharges its duty.”

The decision in that case, however, was based on the failure of the plaintiff to make out a case. The statement that “ the jury had no right to render ” such a verdict is in effect a decision that as matter of law there was not sufficient evidence upon which to base the verdict of the jury. That such was the meaning of the decision is shown by a later decision rendered by the same tribunal in Bertolami v. United Eng. Co., 132 App. Div. 804, where, in a learned opinion written by Mr. Justice Scott, the court, in refusing to set aside a third verdict in favor of the plaintiff, says: “ The plaintiff has thrice recovered a verdict for damages, and we have twice reversed the judgment in her favor. **** * Three juries have found in plaintiff’s favor, and, in my opinion, it is too late to question their findings on the facts.”

In the case at bar, the court, in denying the motion made by defendant at the close of plaintiff’s case to dismiss on the *170ground that the plaintiff had failed to make out a cause of action, and failed to show any negligence on the part of the defendant, and had failed to show himself free from contributory negligence, decided that the evidence was sufficient for the submission of these disputed questions of fact to the jury, and the finding of three successive juries on these disputed questions of fact should be deemed conclusive in the absence of any circumstances tending to show that this jury was actuated by passion, prejudice or corrupt motive.

Unless the system of trial by jury is to be entirely overthrown, there must be a point where the determination of a jury on questions of fact shall no longer be interfered with by the court. The power vested in a trial court to set aside a manifestly unjust verdict, where it is clearly the result of passion, prejudice or corruption, was not intended as establishing the proposition that the verdict of a jury on questions of fact shall not be permitted to stand unless it is in harmony with the views of the justice presiding.

Section 2, article 1, of the state Constitution in providing that trial by jury “ in all cases where it has been heretofore used shall remain inviolate forever ” meant that questions of fact shall be determined by juries and not by the court.

“ There can be no justification where there is evidence to support a proposition, to continually set aside the verdict of juries until a jury happens to be found to agree with the trial court.” Ridgely v. Taylor & Co., 126 App. Div. 304, opinion by Mr. Justice Woodward.

“As the jury are the final arbiters of the facts, the court must, after affording them reasonable opportunities to compare their own opinions of the facts with those held by the appellate court, finally accept the judgment of the jury.” Dorwin v. Westbrook, 11 App. Div. 394.

“ The time has come where interference with the verdict in this action by a trial justice would not only be contrary to well considered precedent, but- subversive of the fundamental theory of our system of procedure.” Quick v. American Can Co., opinion by Mr. Justice Sawyer, affd. on appeal to Appellate Division in 146 App. Div. 939; see *171also opinion of Mr. Justice Martin in McDonald v. Metropolitan St. R. Co., 167 N. Y. 71.

The order setting aside the verdict of the jury herein should, therefore, be reversed and the judgment reinstated, with costs to the appellant.

Seabuey and Bijub, JJ., concur.

Order reversed and judgment reinstated, with costs to appellant.