dissent">Goodrich, P. J. (dissenting):

I an constrained to. dissent from the opinion of my associates-because I think that the'judgment should be reversed on the ground, that the verdict is excessive. It was for $25,000, for which, with. $2,140.66 interest, the judgmeiit was entered.

The complaint alleged that the decedent was a “ Battalion Chief." in the Fire Department of the City of New York,, earning $3,300-per annum,” and left surviving him a widow and two children.. Dale, the deputy chief of the fire department, testified that Lane had been connected with the department since 1885, had been promoted a number of times and was chief of battalion, ranking as-district engineer on the day of his death, at a salary .of $3,300 per year; that the position was not an uncertain one if he behaved himself, and that he was appointed for life, irremovable except for cause..

The widow testified: “I was the wife of Charles W. D. Lane ; I am thirty-eight and my husband at the time of his death was thirty-*95eight; I had been married to him at the time of his death nearly thirteen years; I had two children, Ada Williams Lane, at the time of the accident she was twelve years old, and my little boy was Charles Chandler Lane, eight years old at that time; and they are both living with me. My husband’s health and physical condition before this accident was very fine. * * * His income was the sole support of me and my children.”

There was also the testimony of a fireman that Lane’s health before the accident was “ first class,” and that he never, to his knowledge, had any other accident. This comprises the entire evidence relating to pecuniary loss.

Section 999 of the Code of Civil Procedure provides that the judge presiding at a trial by jury may entertain a motion “ to set aside the verdict, * * * and grant a new trial upon exceptions ; or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence or contrary to law.” The language indicates that a verdict for excessive damages is contrary to evidence. No distinction is made in the rank of the enumerated causes. They stand on the same plane. Excessive damages are just as potent a cause for reversal as a verdict contrary to evidence on other issues; no more, no less.

It is stated , in 14 Encyclopaedia of Pleading and Practice, 756, where numerous authorities are cited, that the rule deducible from the authorities is that in actions for personal injury no mere difference of opinion as to the amount of damages will justify an interference by the court unless the amount is so unreasonable and excessive as to be indicative of passion, prejudice, partiality or corruption of the jury. The rule is more temperately stated in Graham’s Practice (2d ed. p. 633), where it is said that in actions ex delieto a new trial is seldom granted on this account unless the damages be outrageous (citing Sharpe v. Brice, 2 Wm. Black. 942; Leith v. Pope, Id. 1327) or the court be satisfied that the jury acted under the influence of undue motives or of gross error or misconception.

I think the true rule is' that where it is clear from the evidence that the amount of a verdict indicates that it is against the evidence or not supported by evidence or not a just verdict, it may be set aside.

*96-1 am of opinion that the evidence was not sufficient to justify a verdict for $25,000, and that the judgment should be reversed for that reason.

Judgment and orders affirmed, with costs.

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