This action is not unfamiliar to the court. It has been argued before this tribunal of its predecessor, the General Term, on five different occasions. It is unnecessary to refer to any of the reports except the one which appears in 21 Appellate Division, 192, where *391the facts fully appear and where the court laid down the doctrine that the action, as its theory was presented and insisted upon by the plaintiff’s counsel, was an action for the breach of a contract made by the defendants, as receivers of the New York, Lake Erie and Western Railroad Company, to transport the plaintiff from Middle-town to Sparrowbush, upon an ordinary railroad ticket. The rule laid down by the court was that the plaintiff, on the facts which appeared by the record, was entitled to recover damages for a breach of the contract, and that he was not necessarily limited to nominal damages. In this particular, the court overruled the previous decision in 88 Hun, 181.
The counsel for the defendants states in his points that “ precisely the same state of facts ” were presented to the jury on this trial which were presented on the former trial. The trial justice, following the rule of damages laid down by us, instructed the jury that if they found for the plaintiff, they were to find his actual damages, which need not necessarily be limited to nominal damages. The jury found a verdict for $500. The defendants moved to set this aside, on the ground, among .others, that it was for excessive damages, and the court reduced the verdict to $50, upon which the judgment was entered from which this appeal is taken.
The defendants’ counsel also contends that, “ upon precisely the same state of facts as disclosed by this record, this court'held that the verdict for-$100 in favor of this plaintiff was excessive and sent 'the case back for a new trial. The verdict rendered by the jury for $500 was so excessive that it should have been set aside because the amount indicated that the jury were controlled by passion and prejudice.”
I cannot so regard it. The verdict on the first trial was for $100, and from the report of the case it does not appear that the verdict was attacked on the ground that it resulted from passion or prejudice, but that, treating the action as one for breach of contract, it was excessive. ' But this court practically disapproved of that decision on the last appeal, and laid down the rule that the plaintiff was not necessarily limited to nominal damages. The trial justice, in the exercise of a power which we have recently and distinctly approved (Branagan v. Long Island R. R. Co., 28 App. Div. 461), reduced the verdict to a sum which was justified by the evidence, *392and merely sufficient to carry the costs of the litigation; and if the action of the jury was the result of passion and prejudice, such result has been fairly corrected. I do not regard the- verdict as reduced as excessive under the circumstances disclosed by the evidence.
I think the judgment should he. affirmed.
Judgment and order reversed and new trial granted, costs to abide the event.