#### Addie M. Hunt, Respondent, *v.*The Long Island Railroad Company, Appellant.

First Department,

March 5, 1909.

Appeal — jurisdiction of trial court — practice — motion for a new trial.

Where it does not appear that a defendant objected to the jurisdiction of the Special Term to set aside a verdict and grant a new trial on the ground of inadequacy of damages and the issue is not raised on appeal, the question is ' not before the appellate court.

Where in a negligence action the defendant’s motion for a new trial on the ground of excessive damages has been denied and the plaintiff later has obtained an order for a new trial on the ground of inadequacy of damages, the order will not be reversed merely because the defendant, still wishing a new trial, desires it to be granted on the grounds urged by him, or because the order was granted upon a ground which might'be open to criticism if the relief asked was really, objected to.

• Appeal by the defendant, The Long Island Railroad Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 22d day of July, 1908, setting aside the veiv diet of a jury in favor of the plaintiff and granting the plaintiff’s motion for a new trial on the ground of insufficient damages.

*William C. Beecher,*for the appellant.

*William N.*Cohen, for the respondent.

Ingraham, J.:

This action came on for trial at Trial Term in the March term, 1908. The action was to. recover for personal injuries caused to the plaintiff while a passenger on the Long Island railroad. The injuries caused to the plaintiff necessitated the amputation of both legs and she sustained other injuries which have left her a physical wreck and wholly disabled her from performing any work. She was by profession a trained nurse earning from $2,000 to $2,500 a year, and the jury returned a verdict in her favor for $25,000. After the rendition of the verdict defendant’s counsel moved to set it aside and for a new trial on the ground that the damages were •excessive, and the verdict contrary to the law and contrary to the *829facts. This motion was denied and an order entered. Subsequently and on the seventh of April plaintiff’s attorney served a notice on the defendant that she consented that the verdict should be set aside and a new trial granted. Nothing resulted from the service of this notice, whereupon on June 20, 1908, the plaintiff served a notice of motion returnable at Speciál Term for an order setting aside the verdict and granting a new trial on the ground that the verdict was for insufficient damages, and that the same, has resulted in injustice. This motion came on for hearing at Special Term on the 22d of July, 1908, presided over by the same justice who tried the case at Trial Term, and resulted in an order setting aside the verdict and granting a new trial. From this order the defendant appeals.

There is annexed to this notice of motion an affidavit of the plaintiff’s attorney which stated that the action was the last case tried on the March calendar of Trial Term and that said term expired simultaneously with the denial by the court of defendant’s motion on the minutes for a new trial; that on the 10th of April, 1908, plaintiff’s attorney received from the defendant’s attorney a copy of the order denying defendant’s motion for a new trial on the minutes, which had been entered on April 9, 1908; that no judgment ivas entered upon the verdict, and that the defendant has never offered nor intimated its willingness to pay the amount of the verdict; that the defendant’s attorney had stated to the plaintiff’s attorney that the defendant intended and expected to appeal from the judgment when entered. This motion for a new trial is made upon this affidavit and a case which the plaintiff had made, and which the court at her request had settled.

It does not appear that the defendant objected in the court below to the jurisdiction of the Special Term to set aside the verdict and grant a new trial on the ground of inadequacy of damages nor does it raise that question upon this appeal. That question, therefore, will not be considered, and the determination of this appeal is not an authority in support of the practice adopted in this case. Hpon the argument counsel for the defendant stated that it was the intention of the defendant to appeal from the judgment if one should be entered upon this verdict, and that he had not and did not waive the right to appeal from such judgment; but his 'only object in *830this appeal was to prevent the effect that an order for a new trial granted on application of the plaintiff would have upon a subsequent trial of the case. *We*have a case, therefore, that has resulted in the verdict of a jury which satisfies neither party. The plaintiff has succeeded in obtaining an order for a n'ew trial. The deféndant wishes ■ a new trial, but wishes it ordered upon another ground than that'upon which the Special Term has directed it. It is hardly necessary to burden the court with an apjieal from an order which is desired by both parties simply upon the ground that the court below has granted it upon a motion of one of the parties rather than the other or upon a ground which, if a new trial was really objected to, might, be open to. criticism. ■

The plaintiff was frightfully injured and the undisputed evidence is that she is a physical wreck. For such injuries the jury have awarded her $25,000. The learned trial judge considered that in view' of the injuries sustained this verdict was inadequate and has, therefore, directed that the case should be again tried before another jury. ■ In view of the attitude of the defendant and; its insisting that a new trial should be granted,' I do not think that we should reverse this order.

The order is affirmed, with costs to the respondent.

McLaughlin, Laughlin, Clarke and Scott, JJ., concurred.

Order affirmed, with costs and disbursements.