I cannot concur in the conclusion of Mr. Justice Woodwar for affirmance as I think grave error has been committed by the learnéd justice below in refusing to exercise his discretion. In denying a motion to set aside the verdict as excessive he delivered an opinion which clearly evinces his belief that the verdict was excessive, but said that his opinion upon the subject was not what must control him, and intimated á doubt whether it was wise for him or any trial justice to exercise his unquestionable prerogative to set aside an excessive verdict.
*270As Mr. Justice Woodward states in his opinion, there can be no doubt that it is the duty of the trial justice to exercise his discretion in a proper case, and, in my opinion, to refuse to do so constitutes reversible error. '
It is settled law in this State that the .Court of Appeals will not resort to the opinion of the General Term or the Appellate Division of the Supreme Court in passing upon the questions involved in an appeal to that court. This is in accordance with section 1338 of the Code of Civil Procedure relating to such appeals and providing that on such an appeal it must be presumed that the judgment was not reversed, or the new trial granted upon a question of fact, unless the contrary cléarly appears in the record body of the judgment or order appealed from. (Matter of Laudy, 148 N. Y. 403.)
I am, however, unable to find any authority- which applies this rule to the Appellate Division in deciding an apj)eal from the trial court. On the contrary, there can be no doubt of the right of the Appellate Division to consider on an appeal the opinion of the trial court, as rule 41 of the General Rules of Practice provides for the printing of such opinion as part of the record on appeal.
In Hewlett v. Wood (67 N. Y. 394, 399) the court, in speaking of an appeal to this court, said: “ The order cannot be qualified in its operation and effect by reference to the opinion of the court. The court speaks by its order, and effect must be given to it according to its terms. If -the order appealed from was made in.the exercise of the discretion of the court the appeal must be dismissed; but if granted by reason of supposed want of power, as it seems to have been, it must be reversed, and the proceedings remitted that the court may, in its discretion, make such disposition of the application as shall be deemed proper. It ivas the duty of the court below to decide the motion upon its merits and in the exercise of the discretion vested in it.” -
It is manifest that the constraint felt by the learned trial justice has prevented the use of his discretion upon the motion to set aside the verdict, whereby the appellant has been deprived of a legal right, and for this reason I think that the order should be remitted to the trial justice in order to give him an opportunity to exercise his discretion in passing upon the motion to vacate the verdict.
Judgmént and order affirmed, with costs.