CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

[655] Mr. George Whitefield Betts, Jr., with whom Mr. William R. Meagher was on the brief, for petitioner.

Mr. Martin A. Schenck, with whom Mr. Frederick R. Graves was on the brief, for respondent.

[656] MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.

This was an action in a federal court in New York to recover damages for personal injuries allegedly sustained by the plaintiff through the defendant's negligence. The issues were tried before the court and a jury. At the conclusion of the evidence the defendant moved for a dismissal of the complaint because the evidence was insufficient to support a verdict for the plaintiff, and also moved for a directed verdict in its favor on the same ground. The court reserved its decision on both motions, submitted the case to the jury subject to its opinion on the questions reserved, and received from the jury a verdict for the plaintiff. No objection was made to the reservation or this mode of proceeding. Thereafter the court held the evidence sufficient and the motions ill-grounded, and accordingly entered a judgment for the plaintiff on the verdict.

The defendant appealed to the Circuit Court of Appeals, which held the evidence insufficient and reversed the judgment with a direction for a new trial.^[1] The defendant urged that the direction be for a dismissal of the complaint. But the court of appeals ruled that under our decision in Slocum v. New York Life Insurance Co.^[2] the direction must be for a new trial. We granted a petition by the defendant for certiorari because of the last ruling and at the same time denied a petition by the plaintiff challenging the ruling on the insufficiency of the evidence.^[3]

The Seventh Amendment to the Constitution prescribes:

"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury [657] shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law."

The right of trial by jury thus preserved is the right which existed under the English common law when the Amendment was adopted. The Amendment not only preserves that right but discloses a studied purpose to protect it from indirect impairment through possible enlargements of the power of reexamination existing under the common law, and to that end declares that "no fact tried by a jury shall be otherwise reexamined in any court of the United States than according to the rules of the common law."

The aim of the Amendment, as this Court has held, is to preserve the substance of the common-law right of trial by jury, as distinguished from mere matters of form or procedure, and particularly to retain the common-law distinction between the province of the court and that of the jury, whereby, in the absence of express or implied consent to the contrary, issues of law are to be resolved by the court and issues of fact are to be determined by the jury under appropriate instructions by the court.^[4]

In Slocum v. New York Life Insurance Co. a jury trial in a federal court resulted in a general verdict for the plaintiff over the defendant's request that a verdict for it be directed. Judgment was entered on the verdict for the plaintiff and the defendant obtained a review in the court of appeals. That court examined the evidence, concluded that it was insufficient to support the verdict, and on that basis reversed the judgment given to the plaintiff on the verdict, and directed that judgment be entered for the defendant. A writ of certiorari then brought the case here. The question presented to us was whether, in the [658] situation disclosed, the direction for a judgment for the defendant was an infraction of the Seventh Amendment. We held it was and that the direction should be for a new trial.

It therefore is important to have in mind the situation to which our ruling applied. In that case the defendant's request for a directed verdict was denied without any reservation of the question of the sufficiency of the evidence or of any other matter; and the verdict for the plaintiff was taken unconditionally, and not subject to the court's opinion on the sufficiency of the evidence. A statute of the State wherein the case was tried made provision for reserving questions of law arising on a request for a directed verdict, but no reservation was made. The same statute also provided that where a request for a directed verdict was denied the party making the request could have the evidence made part of the record and that, where this was done, the trial court, as also the appellate court, should be under a duty "to enter such judgment as shall be warranted by the evidence." It was in conformity with this part of the statute that the court of appeals directed a judgment for the defendant.

We recognized that the state statute was applicable to trials in the federal courts in so far as its application would not effect an infraction of the Seventh Amendment, but held that there had been an infraction in that case in that under the pertinent rules of the common law the court of appeals could set aside the verdict for error of law, such as the trial court's ruling respecting the sufficiency of the evidence, and direct a new trial, but could not itself determine the issues of fact and direct a judgment for the defendant, for this would cut off the plaintiff's unwaived right to have the issues of fact determined by a jury.

A very different situation is disclosed in the present case. The trial court expressly reserved its ruling on the [659] defendant's motions to dismiss and for a directed verdict, both of which were based on the asserted insufficiency of the evidence to support a verdict for the plaintiff. Whether the evidence was sufficient or otherwise was a question of law to be resolved by the court. The verdict for the plaintiff was taken pending the court's rulings on the motions and subject to those rulings. No objection was made to the reservation or this mode of proceeding, and they must be regarded as having the tacit consent of the parties. After the verdict was given the court considered the motions pursuant to the reservation, held the evidence sufficient, and denied the motions.

The court of appeals held that the evidence was insufficient to support the verdict for the plaintiff; that the defendant's motion for a directed verdict was accordingly well taken; and therefore that the judgment for the plaintiff should be reversed. Thus far we think its decision was right. The remaining question relates to the direction which properly should be included in the judgment of reversal.

At common law there was a well established practice of reserving questions of law arising during trials by jury and of taking verdicts subject to the ultimate ruling on the questions reserved; and under this practice the reservation carried with it authority to make such ultimate disposition of the case as might be made essential by the ruling under the reservation, such as non-suiting the plaintiff where he had obtained a verdict, entering a verdict or judgment for one party where the jury had given a verdict to the other, or making other essential adjustments.^[5]

[660] Fragmentary references to the origin and basis of the practice indicate that it came to be supported on the theory that it gave better opportunity for considered rulings, made new trials less frequent, and commanded such general approval that parties litigant assented to its application as a matter of course. But whatever may have been its origin or theoretical basis, it undoubtedly was well established when the Seventh Amendment was adopted, and therefore must be regarded as a part of the common-law rules to which resort must be had in testing and measuring the right of trial by jury as preserved and protected by that Amendment.

This Court has distinctly recognized that a federal court may take a verdict subject to the opinion of the court on a question of law,^[6] and in one case where a verdict for the [661] plaintiff was thus taken has reversed the judgment given on the verdict and directed a judgment for the defendant.^[7]

Some of the States have statutes embodying the chief features of the common-law practice which we have described. The State of New York, in which the trial was had, has such a statute; and the trial court, in reserving its decision on the motions which presented the question of the sufficiency of the evidence, and in taking the verdict of the jury subject to its opinion on that question, conformed to that statute and the practice under it as approved by the Court of Appeals of the State.^[8]

In view of the common-law practice and the related state statute, we reach the conclusion that the judgment of reversal for the error in denying the motions should embody a direction for a judgment of dismissal on the merits, and not for a new trial. Such a judgment of dismissal will be the equivalent of a judgment for the defendant on a verdict directed in its favor.

The court of appeals regarded the decision in Slocum v. New York Life Insurance Co. as requiring that the direction be for a new trial. We already have pointed out the differences between that case and this. But it is true that some parts of the opinion in that case give color to the interpretation put on it by the court of appeals. In this they go beyond the case then under consideration and are not controlling. Not only so, but they must be regarded as qualified by what is said in this opinion.

It results that the judgment of the court of appeals should be modified by substituting a direction for a judgment of dismissal on the merits in place of the direction for a new trial, and, as so modified, should be affirmed.

Judgment modified and affirmed as modified.

[1] 70 F. (2d) 635.

[2] 228 U.S. 364.

[3] 293 U.S. 541, 577.

[4] Walker v. New Mexico & So. Pac. R. Co., 165 U.S. 593, 596; Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 497-499; Dimick v. Schiedt, 293 U.S. 474, 476, 485-486.

[5] In Carleton v. Griffin, (1758) 1 Burrow's Rep. 549, a verdict for plaintiff was taken subject to the court's opinion on questions of law, which later on were ruled in favor of defendant, whereupon a judgment for him was directed. Other early cases similarly recognized and applied the practice. Coppendale v. Bridgen, (1759) 2 Burrow's Rep. 814; Bird v. Randall, (1762) 3 Burrow's Rep. 1345; Price v. Neal, (1762) 3 Burrow's Rep. 1354; Basset v. Thomas, (1763) 3 Burrow's Rep. 1441; Timmins v. Rowlinson,(1765) 3 Burrow's Rep. 1603.

Law writers also have recognized it. 2 Tidd's Practice, (4th Am. ed.) 900; Tidd's Practice, (London, 1837 ed.) 538, 539; Starkie on Evidence, (10th Am. ed.) [*]809; 1 Archbold's King's Bench Practice, 188, 192; Thayer's Treatise on Evidence, 241.

Later English decisions not only show the practice but also illustrate various applications of it. In Treacher v. Hinton, (1821) 4 Barn. & Ald. 413, plaintiff was non-suited with liberty to move to enter verdict in his favor, and on his motion such a verdict was ordered entered as if given by the jury. In Jewell v. Parr, (1853) 13 C.B. 909, a verdict was directed for defendant with leave to plaintiff to move to enter verdict for him if the court should be of opinion there was not sufficient evidence to sustain the verdict for defendant; and on such a motion the court held the evidence insufficient and directed entry of verdict for plaintiff. In Ryder v. Wombwell, (1868) L.R. 4 Exch. Cas. 32, a verdict was taken for plaintiff with leave to defendant to move to enter non-suit if the court should be of opinion there was lack of evidence; and on such a motion the evidence was held insufficient and non-suit entered.

[6] Brent v. Chapman, 5 Cranch 358; Chinoweth v. Haskell's Lessee, 3 Pet. 92, 94, 96, 98; Suydam v. Williamson, 20 How. 427, 434.

[7] Chinoweth v. Haskell's Lessee, supra.

[8] New York Civil Practice Act, §§ 459, 461; Bail v. New York, N.H. & H.R. Co., 201 N.Y. 355; 94 N.E. 863; Dougherty v. Salt, 227 N.Y. 200, 203; 125 N.E. 94.

[431] [432] [433] Jeffrey M. Schlossberg, Douglas J. Good, Ruskin, Moscou, Evans & Faltischek, PC, Uniondale, NY, for Plaintiff.

Donald C. Sullivan, Corporation Counsel of the City of New York, Brooklyn, NY, Vivian Yuan, City of New York Corporation Counsel, New York City, Defendants.

Barbara A. Jaccoma, Ball Livingston, LLP, Brooklyn, NY, for Michael Miller.

MEMORANDUM AND ORDER

GARAUFIS, District Judge.

Now before this court is Plaintiff's post-trial motion for judgment as a matter of law pursuant to FED R. CIV. P. 50, or alternatively, a new trial pursuant to FED R. CIV. P. 59. For the reasons discussed below, Plaintiff's motion is denied.

I. Background

1. Procedural History

Plaintiff Gilda Tesser brought this civil rights action against her former employers ("defendants") by complaint filed November 17, 1997. The complaint included various claims, including religious discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII") and the New York City Human Rights Law, Administrative Code §§ 8-101 et seq., and retaliation in her terms of employment for having complained about the perceived discrimination. After years of pre-trial discovery and motion practice, the case went to trial before a jury on July 9, 2001. The trial lasted over two weeks, ending on July 25, 2001, when the jury entered a verdict for defendants on all counts.^[1] The instant motion for a judgment notwithstanding the verdict pursuant to FED R. CIV. P. 50, or in the alternative, a new trial pursuant to Rule 59 followed.

2. The Trial and Verdict

The facts of this case are quite extensive. Many of the facts presented at trial were already developed during pre-trial litigation and discussed in my Memorandum and Order dated January 22, 2001 denying in part and granting in part defendants' motion for summary judgment. Familiarity with that decision is presumed. The following is an abbreviated review of [434] those facts as they are relevant to the instant motion and as they were further developed at trial.

At the time of the allegedly discriminatory actions, Plaintiff was an Assistant Principal in Charge of P.S. 177 in Community School District 21. Defendant Superintendent Weber appointed Plaintiff to this position. At the time, he believed Plaintiff would eventually be promoted to principal when the position became available and intended to support her candidacy for this position. (Tr. 524-25.)

In 1991, Plaintiff applied for the position of principal at P.S. 177. "In effect at that time was an internal Chancellor's C-30 Regulation requiring community school boards to follow a three-step process in selecting supervisory personnel. Level I involved the establishment of a screening committee consisting of six to ten parents, two teachers, the superintendent, and community school board members. The committee determined the selection criteria and interviewed at least ten candidates. Only the parents and teachers were allowed to vote for at least five of those candidates, who were then recommended to the community superintendent. Level II required the superintendent to evaluate the recommended candidates and recommend two to the community school board. Level III required the community school board either to select one for appointment or to request that the superintendent or committee consider other candidates from the original Level I pool." (Order of January 22, 2001 at 2-3; see also Tr. 330-331.)

Plaintiff testified that prior to, and during her candidacy, she learned that the parents of P.S. 177 were opposed to her appointment because she was Jewish. (Tr. 259-60.) Plaintiff informed Weber of the anti-Semitic animus she believed was being expressed by the parents. Plaintiff and Weber had several conversations regarding Plaintiff's concerns. Weber testified that over the course of these conversations he began to believe Plaintiff was acting irrationally, that she would be unable to work effectively with the school community, and that her perception of anti-Semitism was unfounded. In explaining why he thought Plaintiff was "unraveling" or acting "irrationally," he testified that Ms. Tesser yelled at him, that he thought she was accusing the parents of anti-Semitism rather than admitting that they simply did not like her, and that she stated she was "going to get" the parents on the selection committee. (Tr. 554-55, 619-622, 709.)

Despite the alleged religious discrimination directed at Plaintiff, the parents did not eliminate Plaintiff from consideration and she successfully moved on to the second level of consideration. Moreover, Plaintiff's own witness, a member of the Level I selection committee, testified that no parent indicated a desire to prevent Ms. Tesser's selection because she was Jewish. Plaintiff's witness did testify, however, that the parents thought Ms. Tesser was being given preferential treatment by Weber because she was Jewish. (Tr. 1275-77.) This witness further testified that the parents indicated their preference for another candidate, Mr. Ianniello. The witness thought it was unfair that the parents were attempting to hamper Ms. Tesser's progress to Level II because they did not like Ms. Tesser personally and because they preferred Mr. Ianniello for his popularity rather than for his qualifications. (Tr. 1288-90.)

After passing Level I, Plaintiff hired an attorney because of her concern about religious discrimination affecting the progress of her candidacy. On January 16, 1992, Plaintiff tape recorded a conversation she [435] had with Weber and Plotnick^[2] in which her decision to hire an attorney was discussed. (Ex. 399.) Weber made it known to Tesser that he did not agree with her decision to hire an attorney. (Id.) He was later admonished for these statements in a letter from the Chancellor. (Ex. 33.) On June 24, 1992, Weber submitted his two choices for principal of P.S. 177 to the school board. Plaintiff was not one of the two finalists. (Ex. 113.) Therefore, after the completion of Level II, Plaintiff was no longer under consideration for the position of principal. Weber testified that although he did not think it was necessary for Plaintiff to hire an attorney, this was not the basis for his decision not to recommend her to Level III. (Tr. 641.) He further testified that he knew that one finalist, Kathleen Lavin, was not Jewish; however he believed the other finalist, Arlynn Brody, was Jewish. (Tr. 657-58.) In sum, Weber testified that his decision not to recommend Plaintiff was not based on her religion or in retaliation for hiring an attorney, but was the result of his concern that she could not handle the responsibilities of a principal at P.S. 177.

By letter dated June 30, 1992, Weber informed Plaintiff that instead of remaining at P.S. 177 she had been reassigned to P.S. 128, another school within District 21 in which she had worked prior to coming to P.S. 177. (Tr. 664-65.) Her assignment was to begin in August 1992. On July 7, 1992, she filed a complaint with the Board of Education of the City of New York ("BOE") alleging discrimination based on her religion in the C-30 selection process. Thus, at the time Plaintiff was beginning her work at P.S. 128, an investigation was ongoing with respect to her complaint and the selection of Lavin as principal at P.S. 177. (Tr. 703-04.) The Office of Equal Opportunity concluded that the decision not to select Plaintiff was not the result of religious discrimination, and the selection of Lavin was finalized. (Ex. 17; Tr. 704.)

During the 1992 school year at P.S. 128, various employment-related actions were taken with respect to Plaintiff, which she alleged were discriminatory. These included a change in office space, change in duties, and a refusal by Principal Miller to allow her to see and revise the faculty notes for the upcoming school year. (Tr. 155-158, 1005-1033.) Plaintiff also testified that within her first few weeks back at P.S. 128, Miller told her that she would not be allowed to remain there and threatened to have her thrown out of the building if she did not leave. (Tr. 159-60.) Plaintiff claimed to have suffered tremendous emotional stress as a result of this incident, and she was admitted to psychiatric care for treatment. She filed a "line of duty" injury claim, alleging that Mr. Miller's treatment had directly led to her need for therapy and inability to work for some 25 days. (Tr. 164-68.)

Plaintiff subsequently filed a claim of religious discrimination and retaliation with the New York Human Rights Commission in June 1993 (Ex. 322), requested a temporary transfer to another district in August of 1993 (Ex. 350), and applied for, and was granted whistle-blower status on September 21, 1993 by the Special Commissioner of Investigation ("SCOI"). (Ex. 390.) Because the BOE had not granted Plaintiff her requested transfer outside of District 21 (Tr. 719-20; Exs. 350-52), on her own initiative she obtained employment in the Plainview Old Bethpage Central School District ("Plainview"). BOE granted her a one year leave to take this position. (Tr. 186-87, 194-95.) She also was granted a leave of absence for childcare immediately following her one-year leave to work in Plainview. (Tr. 196.) [436] When it was discovered that she had been working elsewhere while on child-care leave, in violation of the leave policy, she was ordered to return to work in District 21 or risk being reported as an unauthorized absentee. (Tr. 199-200, 948-51.) When Plaintiff did not return to District 21 for work, she was deemed resigned, a less severe status than unauthorized absentee because it allowed her the option of withdrawing her resignation. (Tr. 950-52.)

At trial, the above facts, as well as those going to damages, were developed in greater detail through the submission of numerous documents, letters, tape recordings, expert opinion, witness testimony, and records from the administrative investigations and proceedings. Included among the testifying witnesses were Plaintiff, Defendant Weber, and Defendant Miller. As in many discrimination cases, ultimately the case turned in significant degree on the respective credibility of Plaintiff and defendants and their explanations for the various events and employment actions. In this case, the jury did not believe that Plaintiff's version was more probable than not, and it returned a verdict in favor of the defendants. The jury unanimously found that Plaintiff did not prove that the BOE, Community School District 21, Donald Weber, or Michael Miller "discriminated against her based on her religion," (Tr. 1375), and it found that Plaintiff had not proven that the BOE, Community School District 21, Donald Weber, or Michael Miller "retaliated against her because of her complaining of religious discrimination or because she hired an attorney." (Tr. 1376.)

II. DISCUSSION

A. Rule 50 Motion for Judgment as a Matter of Law

1. Legal Standard

In this Circuit, a party seeking to vacate a jury verdict and enter judgment as a matter of law carries a "heavy burden." See Burke v. Spartanics Ltd., 252 F.3d 131, 136 (2d Cir.2001); Ryduchowski v. Port Authority of New York and New Jersey, 203 F.3d 135, 142 (2d Cir.2000) (holding district court erred in setting aside jury verdict and entering judgment as a matter of law). Judgment as a matter of law is only appropriate when "(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded persons could not arrive at a verdict against it." Burke 252 F.3d at 136 (quoting Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir.1998)); see also FED R. CIV. P. 50(a)(1). When considering a Rule 50 motion and deciding whether there was a sufficient evidentiary basis to support the verdict, the court cannot assess the weight of conflicting evidence or substitute its judgment for that of the jury. Rather, it must make all credibility determinations and draw all inferences in favor of the nonmovant. See Sharkey v. Lasmo, 214 F.3d 371, 374 (2d Cir.2000); Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 367 (2d Cir.1988); Mattivi v. South African Marine Corp., 618 F.2d 163, 167-68 (2d Cir.1980).

2. Analysis

a) Plaintiff Carries the Burden of Persuasion

First, Plaintiff argues for judgment as a matter of law on the basis that there is overwhelming circumstantial evidence to support her claim of religious discrimination by her employers and defendants have failed to supply evidence sufficient to [437] support their asserted legitimate business reason for not promoting Plaintiff. (Mem. of Law in Supp. of Pl.'s Mot. Pursuant to Rules 50 and 59 ("Pl.'s Mem. of Law") at 13-14.) In making this argument, Plaintiff implies that by having established her prima facie case, she presented the jury with a presumption of discrimination that shifted the burden of disproving such discrimination to defendants. To the extent Plaintiff relies on this presumption, it mischaracterizes the proper legal burden Plaintiff maintained at trial, and is insufficient for granting judgment as a matter of law.

The Second Circuit has made clear that in employment discrimination cases, as in other civil cases, the ultimate burden of persuasion always remains with the plaintiff. See Fisher v. Vassar College, 114 F.3d 1332, 1336-37 (2d Cir.1997). The presumption created by the McDonnell Douglas burden shifting analysis, so critical in surviving summary judgment or dismissal at the close of plaintiff's case^[3], is not enough to guarantee a plaintiff will win her case, "even if the elements of the prima facie case go unchallenged." Id. at 1336. "[E]vidence sufficient to satisfy the scaled-down requirements of the prima facie case under McDonnell Douglas does not necessarily tell much about whether discrimination played a role in the employment decision. The fact that a plaintiff is judged to have satisfied these minimal requirements is no indication that, at the end of the case, plaintiff will have enough evidence of discrimination to support a verdict in his favor." Id. at 1337; see also Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir.2000) ("Generally, it is the judge, not the jury, who must decide whether a plaintiff has satisfied the requirements of McDonnell Douglas's minimal version of a prima facie case; when a [discrimination] case does go to the jury, the jury's task is simply to determine the ultimate question of whether the plaintiff met her burden of proving that the defendant was motivated by prohibited retaliation.") (internal quotations, alterations and citations omitted).

In the instant case, the facts presented by Plaintiff were sufficient to establish a prima facie case at the summary judgment stage and to proceed to trial. Those same facts, however, are not necessarily sufficient, as a matter of law, to require a verdict in her favor. Thus, in considering Plaintiff's motion for judgment notwithstanding the verdict, this court does not reapply the McDonnell Douglas analysis to Plaintiff's claims. Rather, this court considers the sole determinative issue, whether or not a reasonable jury could have concluded that Plaintiff failed to prove by a preponderance of the evidence that defendants' employment-related actions [438] were motivated by illegal discrimination or retaliation.

b) Plaintiff's Claim of Religious Discrimination

In arguing that Plaintiff has proven as a matter of law the defendants' discriminatory motive, Plaintiff essentially reargues the facts presented at trial. Based on these facts she asserts that "the evidence supports but one conclusion: Weber capitulated to the discriminatory will of the parents and declined to pass Ms. Tesser's name on to Level III." (Pl.'s Mem. of Law at 15.) She argues that Weber's proffered reasons for not passing on Ms. Tesser's name are incredible, and therefore the only rational conclusion is that he is trying to hide his discriminatory motives. In particular, Plaintiff points to the fact that Weber continued to employ and approve of Ms. Tesser's work during the same period of time he claims that she began acting irrationally and incapable of taking on the position of principal. (Id. at 16-17.)

As a matter of law, Plaintiff's suggestion that a clear showing of pretext establishes discrimination in this case is wrong. While proof of pretext combined with circumstantial evidence may be sufficient to prove discriminatory intent, it does not require such a finding. See Zimmermann v. Associates First Capital, 251 F.3d 376, 381-82 (2d Cir.2001) (holding combination of prima facie case and evidence of pretext is neither always sufficient nor always insufficient). In other words, the jury might have disbelieved Weber's proffered reason for his decision, yet still not believed that Plaintiff had proven illegal discrimination was a motivating factor. See Fisher, 114 F.3d at 1339-40 ("That the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason of [discrimination] is correct.") (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)); Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir.2000).

As a factual matter, defendants presented sufficient evidence upon which a jury could believe their proffered reasons were true, or at least have concluded that discrimination was not a motivating factor. In explaining his reasoning in not recommending Plaintiff, Weber testified that while he thought Ms. Tesser was still capably performing her current duties, he did not believe that she was demonstrating the skills, especially in relating to the parents and community, necessary for a principal. Based on this assessment, he decided not to pass her name on to Level III. (Tr. 764-69.) The evidence presented at trial is not wholly inconsistent with this explanation.

On a motion for judgment as a matter of law, I cannot disregard Weber's explanation by passing on his credibility or weighing conflicting evidence. See United States v. Landau, 155 F.3d 93, 103 (2d Cir.1998); Smith, 861 F.2d at 367. While evidence introduced by Plaintiff could have led a reasonable jury to disbelieve Weber, the evidence was not so "overwhelming[ly] ... in favor of the movant that reasonable and fair minded persons could not arrive at a verdict against [her]." Burke 252 F.3d at 136. Further, given the significant conflicting evidence, I do not find that the jury's verdict was based on "sheer surmise and conjecture." Id. Accordingly, I find that a reasonable jury could conclude, as did the jury in this case, that Plaintiff failed to prove by a preponderance of the evidence that defendants acted with a discriminatory motive.

c) Plaintiff's Claim of Retaliation

Plaintiff also argues that she has proven retaliation by defendants as a matter [439] of law. With respect to Defendant Miller, Plaintiff argues that this court should find his testimony that he did not have knowledge of her participation in a protected activity as "incredible as a matter of law" and that this court should "infer" that Miller had knowledge because the SCOI determined that Miller had retaliated against Plaintiff. (Pl.'s Mem. of Law at 20-21.)

With respect to Defendant BOE, Plaintiff argues that because the SCOI determined that Miller retaliated against Plaintiff, this finding is "conclusive" and when the BOE accepted this determination it "admitted" retaliation by Miller, for which it is liable. (Id. at 27.) Similarly, she argues that the BOE already "admitted" Weber's retaliatory conduct when it found that Weber acted improperly in calling the Plainview school in violation of BOE's order that Weber not call any of Plaintiff's "prospective employers". (Id. at 28.)

State administrative findings, such as the SCOI investigation, or the finding of probable cause by the New York Human Rights Commission are not preclusive on federal Title VII claims. See Univ. of Tenn. v. Elliott, 478 U.S. 788, 796, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986); Raniola v. Bratton, 243 F.3d 610, 623-24 (2d Cir. 2001). Therefore, the jury was not bound to find, as Plaintiff would have it, that the SCOI findings or their adoption by the BOE establish retaliatory conduct as a matter of law under the meaning of Title VII. Moreover, the jury was properly instructed on the various elements required for a finding of retaliation, and how those differed as between individual and corporate defendants. The jury was instructed that "[t]o find a defendant liable for retaliation, you must find, by a preponderance of the evidence, that the defendant, motivated by the plaintiff's reasonable and good-faith opposition to discrimination based on her religion, subjected her to an adverse employment action." (Tr. 1357-58.); see also Raniola, 243 F.3d at 623. I further instructed the jurors that they could find retaliation by the BOE, Community School District 21 and Weber "even if Miller denies direct knowledge of the plaintiff's claims of religious discrimination" (Tr. 1356), and the jury received instructions on the meaning of constructive discharge as a form of adverse employment action. (Tr. 1359.)

While the SCOI finding was not binding on the jury, it was persuasive evidence in favor of Plaintiff. This court, however, must view the evidence in the light most favorable to defendants and draw all reasonable inferences in their favor. Considering the SCOI was only one piece of evidence among many, I find that a reasonable jury could conclude that the actions taken by the defendants were not retaliatory.

First, Miller testified that when Plaintiff returned to P.S. 128 he did not know of her complaints to the Chancellor and the BOE. (Tr. 884.) I will not second-guess the jury's weighing of his testimony. Second, the defendants presented evidence upon which a reasonable jury could conclude that the various employment-related actions were not "adverse," regardless of defendants' knowledge of Plaintiff's complaints. For instance, although Plaintiff's office at P.S. 128 upon her return there in 1992 was not the same one she had during her prior tenure, Miller testified that the change had occurred after she left in 1990, when a new assistant principal, Mr. Sealey, took over. (Tr. 1004-05.) Based on this evidence, the jury could reasonably conclude that the change in office space, which occurred two years prior, was not an adverse employment action directed at Plaintiff's complaints of religious discrimination. Similarly, the jury could reasonably conclude [440] that the fact that Plaintiff was responsible for more bus and lunchroom duties was not retaliatory since these were the same bus and lunchroom duties that Mr. Sealey had performed as assistant principal prior to Plaintiff's return to this position. (Tr. 1013-16.) Finally, accepting as true Defendant Miller's account of the incident in which he told Plaintiff to leave the building, he was ordering her to go to the district office for a counseling session because of her recent comments about getting back at the superintendent, the school board and the parents. (Tr. 903.) A reasonable jury could find Miller's action appropriate in the given context and conclude that he did not retaliate for any complaints of discrimination by Plaintiff.

While the examples discussed above do not account for every point of fact which Plaintiff raises to support her motion for judgment as a matter of law on the retaliation claim, they amply demonstrate the sufficient conflicting evidence as to the motivations of the defendants. Thus, I find that a reasonable jury could conclude that Plaintiff failed to prove by a preponderance of the evidence that the defendants retaliated against Plaintiff because of her complaints of discrimination.

B. Plaintiff's Rule 59 Motion for a New Trial

1. Legal Standard

A motion for a new trial, pursuant to FED R. CIV. P. 59, may be granted when the district court is "convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 370 (2d Cir. 1988). Unlike the standard for granting judgment as a matter of law, the standard for a new trial permits the trial judge to "weigh the evidence himself, and [he] need not view it in the light most favorable to the verdict winner." DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d Cir.1998). Despite this more lenient standard, the Second Circuit has cautioned that a trial court "should rarely disturb a jury's evaluation of a witness's credibility." Id. (internal citations omitted). Therefore, "[w]here the resolution of the issues depend[s] on assessment of the credibility of the witnesses, it is proper for the court to refrain from setting aside the verdict and granting a new trial." Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir.1992); see also DLC Mgmt. Corp., 163 F.3d at 134; Piesco v. Koch, 12 F.3d 332, 345 (2d Cir.1993).

2. Analysis

First, Plaintiff argues that the complete lack of credibility of defendants Miller and Weber taken together with the substantial evidence in her favor warrant a new trial. In addition, she identifies four other grounds for granting a new trial: the inadequacy of jury deliberations, the limitations on Plaintiff's ability to present her rebuttal case, the admission of irrelevant and prejudicial evidence, and improper statements made by defendants' counsel during summation. (Pl.'s Mem. of Law at 31-32.) Even under the more lenient standard for granting a new trial, this court finds that none of the stated grounds are sufficient, individually or cumulatively, for granting a new trial in this case.

a) Sufficiency of the Evidence

As already discussed with respect to the Rule 50 motion, there is a significant amount of evidence that if believed as true supports the jury's verdict for defendants. I do not find that defendants Miller and Weber were so lacking in credibility as witnesses that the jury could not have properly believed all, or part, of their testimony. Therefore, I decline to set aside a [441] jury verdict on the basis of witness credibility when the resolution of determinative issues in this case largely depended on the juror's assessment of those very witnesses' testimony. See Metromedia Co., 983 F.2d at 363.

b) Adequacy of Jury Deliberations

Second, Plaintiff's claim that the jury deliberations were inadequate is without merit. In Wilburn v. Eastman Kodak Co., 180 F.3d 475 (2d Cir.1999), the Second Circuit held that the trial judge did not err in denying plaintiff's motion for a new trial where the jury had deliberated for only twenty minutes. Id. The court held, "[a] jury is not required to deliberate for any set length of time. Brief deliberation, by itself, does not show that the jury failed to give full, conscientious or impartial consideration to the evidence." Id. In the instant case, the jury was given comprehensive instructions on the law and then deliberated for approximately two hours. While there was a great deal of documentary evidence to consider, the issues to be resolved in this case were not more complex than the average Title VII employment discrimination case. Moreover, there is no reason to conclude that in considering this case the jury "contemptuously or flippantly disregarded its duty." Id. Accordingly, I find no basis for overturning the jury verdict based on the length of its deliberations.

c) Trial Errors

Plaintiff's third through fifth asserted grounds for a new trial all allege some type of evidentiary or trial error. This court considers these grounds for a new trial in the context of the harmless error standard of the Federal Rules of Civil Procedure, which states:

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial ... unless refusal to take such action appears to the court inconsistent with the substantial justice. The court at every stage of the proceeding must disregard any error of defect in the proceeding which does not affect the substantial rights of the parties.

FED.R.CIV.P. 61; see also Perry v. Ethan Allen, Inc., 115 F.3d 143, 150 (2d Cir.1997) (holding that the court "will not conclude that a substantial right was affected unless it is likely that in some material respect the factfinder's judgment was `swayed by the error'").

i. Order of Witnesses

Plaintiff's third ground for a new trial is that she suffered substantial prejudice when she took the stand before defendants Weber and Miller, limiting her ability to rebut their testimony. Weber and Miller were called to the stand as Plaintiff's witnesses, but were not called to the stand by Defense. Plaintiff intended to take the stand as part of her case in chief, but only after first placing Weber and Miller on the stand for direct. Despite this court's order, Weber and Miller were not available on the first day of trial, thus Plaintiff took the stand first. Plaintiff argues that this so severely limited her ability to rebut statements made by Weber and Miller that it amounts to grounds for a new trial.

A trial court has discretion to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, [and] (2) avoid needless consumption of time...." FED.R.EVID. 611. Therefore, it was within this court's discretion to move forward [442] once the jury had been selected, rather than delaying the start of trial by a day or more so that Plaintiff would not have to take the stand before Weber and Miller. Moreover, Plaintiff was free to request an opportunity to retake the stand after Weber and Miller testified but before the close of her case-in-chief. She made no such request at trial. Accordingly, I find that the order of presenting evidence and witnesses was managed in accordance with Rule 611 and that Plaintiff had adequate opportunity at the time of trial to remedy any potential prejudice that she believed would result from the order of witnesses.

ii. Improperly Admitted Evidence

Plaintiff's fourth ground for a new trial is based on the admission of two exhibits, her unredacted tax returns and a letter written by the interim Superintendent of the Plainview school, which explained why Plainview was denying Plaintiff tenure. Plaintiff argues that both of these pieces of evidence were irrelevant and unduly prejudicial and that their admission warrants a new trial.

As to the unredacted tax returns, Plaintiff principally argues that the "Jury's access to the entire tax returns only served to tap any latent prejudices the jurors might direct to Ms. Tesser based upon her wealth." (Pl.'s Mem. of Law at 36.) I previously considered the issue of relevance and prejudice before deciding to admit the tax returns in dispute. (Tr. 1467-69.) The decision as to whether or not to admit these documents was reserved until after Plaintiff elicited testimony from her expert, Mr. McAteer, on the tax implications of a damages award to Plaintiff. Mr. McAteer testified that he had reviewed Plaintiff's W-2 forms, among other documents, in preparing his report and he testified as to how a lump sum award to Plaintiff would increase her tax bracket and cause her to pay more in taxes than if she had received that sum as pay over several years. (Tr. 1492-93.) Based on this testimony, it was decided to admit the tax forms with the following limiting instructions to the jury: "The amounts earned by plaintiff's spouse and the family's other income and assets as reflected on the joint tax returns may be considered by you only to the extent that you believe they bear on the testimony of Mr. McAteer to the degree that he referred to the tax consequences in calculating damages. These amounts have no other bearing on this case, and I instruct you not to consider them otherwise." (Tr. 1363.) In light of this limiting instruction, and the rule that "juries are presumed to follow their instructions," Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), I conclude that any potential prejudice was sufficiently cured and the admission of the tax returns did not create substantial prejudice.

With respect to the admission of Defendants' Exhibit NN-2, which was the letter by the interim Superintendent of Plainview, Plaintiff withdrew her objections to admission of this exhibit. (Tr. 431-439, 464-65.) Moreover, this letter was discussed in, and attached to, Plaintiff's Expert Witness Report, which was admitted by Plaintiff as Exhibit 309. (Tr. 1346, Ex. 309 at 7.) Given these facts, Plaintiff cannot claim any prejudice based on its admission, let alone claim substantial prejudice requiring a new trial.

iii. Defendants' Summation

Finally, Plaintiff argues that defense counsel made statements in summation which "led the jury over the line from permissible inference to impermissible speculation." (Pl.'s Mem. of Law at 38.) Specifically, Plaintiff argues that defendants caused her substantial prejudice by [443] suggesting, without any factual support, that Plaintiff was withholding, or had destroyed, various pieces of evidence or witness testimony that would either fail to support her claim or, alternatively, exonerate Defendants. (Id. at 39-46.) For instance, Plaintiff objects to statements made in reference to the tape recorded phone conversations, such as "What did she cutout? She cut something out. She is hiding something from you, snippants she is one to give you little snippants, not the full picture, if you saw the full picture you would realize there was not merit to her claim at all." (Tr. at 1250.)

In a civil case such as this, speculation by defense counsel, while not proper, does not threaten to impermissibly shift the burden of proof as it would in a criminal case in which the prosecution makes unfounded speculative arguments about a defendant's guilt. Here, defendants were free to argue that Plaintiff had not met her burden and to question the sufficiency of her evidence. While, there was no specific evidentiary basis for suggesting that Plaintiff had "cutout" or withheld other tape-recordings, taken in context the defense was arguing that the recordings presented by Plaintiff did not accurately represent the conversations between her and defendants. Similarly taking in context each of the statements to which Plaintiff points, I do not believe that they were so prejudicial as to have improperly swayed the jury. Moreover, I gave the jury very specific instructions to preclude any impermissible speculation. The jury was instructed that, "[r]easonable inferences are conclusions prompted by reason and common sense. Not all logically possible conclusions are reasonable inferences. Whether a particular inference is reasonable is exclusively for you to determine. In deciding this case, you may consider only the exhibits which have been admitted in evidence and the testimony of the witnesses as you have heard it in this courtroom." The jury was further cautioned, that "[t]he questions, arguments, remarks and summations of the attorneys are not evidence...." (Tr. 1346-48.)

I find that any potential prejudice resulting from statements by defense counsel which may have verged on speculation was adequately cured by the instructions to the jury, and in any case, in light of all the other evidence, such statements could not be considered so substantially prejudicial as to "in some material respect" have "swayed" the factfinder's judgment. Perry, 115 F.3d at 150.

d) Plaintiff is Not Entitled to a New Trial

Having considered all the evidence presented at trial, and for all the reasons discussed above, I do not believe that the jury reached a "seriously erroneous result" in deciding that Plaintiff had not carried her burden of proof and I do not find that the verdict is a "miscarriage of justice." Accordingly, Plaintiff's motion for a new trial is denied.

III. Conclusion

For all the reasons discussed above it is hereby ORDERED that Plaintiff's motion for judgment as a matter of law or, in the alternative, for a new trial is DENIED in its entirety.

SO ORDERED.

[1] The jury verdict found 1) that plaintiff did not prove that the Board of Education, Community School District 21, Donald Weber or Michael Miller ("defendants") had discriminated against plaintiff on the basis of her religion; 2) that plaintiff did not prove that the defendants retaliated against plaintiff because of her complaints of religious discrimination or because she hired an attorney; and 3) that plaintiff did not prove that information contained in the letter dated November 29, 1994 was false or misleading. (Tr. 1375-76.) Plaintiff moved pursuant to Rules 50 and 59 only with respect to the verdicts on discrimination and retaliation. Therefore, the verdict regarding false or misleading information is not challenged or considered in this memorandum and order.

[2] Sheldon Plotnick was the President of Community School Board 21 ("school board").

[3] On a summary judgment motion in a Title VII case "where there is no direct or overt evidence of discriminatory conduct, [courts] apply the three-part burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.2000). First, the plaintiff must establish her prima facie case of discrimination by showing that 1) she is a member of a protected class; 2) she was qualified for the position; 3) she was subject to an adverse employment action; and 4) circumstances give rise to the inference that the adverse action was motivated by impermissible discrimination. See id. Once the prima facie case is established, a rebuttable presumption of discrimination arises, and the defendant has the burden of producing evidence of a legitimate nondiscriminatory reason for the employment action. See Weinstock, 224 F.3d at 41. If the defendant carries this burden, then the presumption disappears and in order to defeat summary judgment the plaintiff must present evidence sufficient to allow a rational finding that a discriminatory motive was the real reason for the adverse employment action. Id.

[67] Mr. Ishmael Sklarew argued the cause for the appellant.

Mr. John C. Stockel argued the cause for the respondents.

The opinion of the court was delivered by JACOBS, J.

The plaintiff suffered serious injuries in an automobile accident and, after trial, received a jury verdict in the sum of $3,000. He applied for a new trial because of the inadequacy of the verdict but his application was denied when the defendants consented that the damages awarded to the plaintiff be increased to the sum of $7,500. The plaintiff appealed and we thereafter certified on our own motion.

On September 17, 1953 motorcycle officer Petras was on traffic duty at the intersection of Bunn's Lane and Amboy [68] Avenue in the Township of Woodbridge. He halted north-and south-bound traffic along Amboy Avenue to enable the crossing of school children. The plaintiff's car was the third in line traveling south along Amboy Avenue and his car came to a full stop as did the two cars ahead of him. He was then struck in the rear by a truck owned by the partnership defendant and driven by the individual defendant. According to the testimony of both the plaintiff and the motorcycle officer the individual defendant explained at the scene of the accident that he thought his foot had "slipped off the brake." At the trial he denied having made such statement but did admit that he ran into the rear of the plaintiff's car and that the stoplights on the plaintiff's car were in proper working order. His story was that after the plaintiff's car had been brought to a standstill, it started moving again and was then brought to a very sudden stop after having traveled about 12 feet. When the jury returned its unanimous verdict its foreman stated that it had found "negligence on the part of the truck driver." During the application for new trial the lower court expressed the opinion that "liability was established beyond peradventure of a doubt," and we entertain the same view.

The plaintiff testified that when his car was struck he "was jerked back and forth" and received "a terriffic bang" on his head; his car went forward striking the car ahead which in turn struck the first car in line. Although he had received a severe impact he thought he would "be all right" and started to drive home. On the way he "began to get pains," stopped his car, and was ultimately driven home by a State Trooper. He called Dr. Copleman, who treated him during the next six weeks. Dr. Copleman testified that his examination showed that the plaintiff was suffering from injury to his neck and back which he diagnosed as "a whip lash injury, the head had been snapped back by an impact." He treated him originally with "sedatives and drugs for his pain * * * took x-rays of his neck and back, gave him diathermy treatments, and finally had to recommend that he wear a brace for his neck." [69] During this time the plaintiff, though he wore the recommended brace night and day, complained of much pain, and seeing little improvement Dr. Copleman recommended that the plaintiff consult Dr. Hoffman, an orthopedic physician of New Brunswick.

On the advice of Dr. Hoffman the plaintiff entered the Middlesex General Hospital on November 1, 1953 and remained there for two weeks. During that time he was placed in traction, which failed, however, to relieve his intense pain. Dr. Hoffman suspected that the plaintiff was suffering from a ruptured disc and he consulted Dr. Scheuerman, a neurological surgeon of Trenton. Dr. Scheuerman examined the plaintiff on November 17, 1953, made a diagnosis of probable ruptured disc, and recommended that he return to the hospital for further study. The plaintiff returned to the hospital on November 23, 1953 and a myelogram was performed; it confirmed that the plaintiff had a ruptured disc, and a hemilaminectomy was performed by Dr. Scheuerman with Dr. Hoffman assisting. The plaintiff was discharged from the hospital on December 10, 1953; he remained at home until February 15, 1954 and then returned to his employment, but only on a part-time basis. On July 20, 1954 he returned to the hospital where Dr. Scheuerman removed oil which had been inserted in the spinal canal during the myelogram. He did not resume full-time work until September 1954.

Dr. Scheuerman testified that he administered post-operative treatment to the plaintiff, who has continued to have some pain and is "not able to do all of the usual duties that he had previously." Dr. Hoffman testified that the operation on the plaintiff left a residual which he described as follows:

"Well, he has had a great deal of pain in the back. At one time he had a listing of the pelvis, in that the iliac crests were not level. And at that time he had a thickened sole prescribed and heel, to bring it up to normal. And he has no reflexes on the left side, no quadriceps extensor reflexes, or patellar reflexes; and he has atrophy of the calf muscles, compared with the opposite side, it is a little over a half an inch in circumference difference."

[70] The plaintiff testified that he still is unable to perform his heavier duties and experiences back and leg pains for which he takes prescribed narcotics, is unable to sleep without sedation, and is unable to sit at one place for any substantial length of time. Both Dr. Scheuerman and Dr. Hoffman testified that there was a causal relation between the plaintiff's accident on September 17, 1953 and the hemilaminectomy which was performed thereafter. No medical testimony whatever to the contrary was introduced by the defendants, although they do urge that the plaintiff's injuries were attributable, at least in part, to an earlier accident which he suffered on February 3, 1950.

The 1950 accident resulted in a law action by the plaintiff which was later discontinued. In answers to interrogatories in that action the plaintiff stated that he was "partially prevented from attending his work between February 20th and February 27th, 1950"; that his injuries were "concussion; lumbo-sacral back sprain; vertigo; headaches; tinnitus or ringing of both ears and slight loss of hearing in both ears"; that he "will claim permanent injury to his back and loss of hearing and headaches"; and that his last medical treatments were in May and June 1950. However, the record indicates that the plaintiff actually suffered no really pertinent aftermaths of the 1950 accident. He testified (and there is nothing before us to suggest otherwise) that after February 27, 1950 and prior to his accident of September 17, 1953 he never lost a day's work "outside of having a cold or something like that," and that during that period his health was good and he engaged in sports and heavy work in normal fashion. The defendants suggest that prior to the 1953 accident the plaintiff had a "chronic back condition," which they relate to the later operation for a ruptured disc, and they refer specifically to a hospital record entry by Dr. Hoffman; but Dr. Hoffman made the entry on November 1, 1953 and explained that he was referring to the plaintiff's condition after the 1953 accident; in his own language: "I didn't say he had a chronic back prior to the accident. That was only after the accident."

[71] The plaintiff's actual expenditures to doctors and nurses and for drugs and hospitalization exceeded $2,200. And although he received most of his normal earnings despite his temporary incapacity, there was a loss of wages approximating $620. While the jury's verdict of $3,000 just about took care of the plaintiff's actual monetary losses, it awarded substantially nothing for his suffering and permanent injuries. Its gross inadequacy was recognized by the trial judge who pointed out that "there was no dispute but that the plaintiff suffered excruciating pain, and was rendered totally helpless for a considerable period of time." On June 28, 1956 the trial judge wrote to the parties advising that unless the defendants filed a consent in writing that the verdict be increased from $3,000 to $7,500, "then the verdict heretofore rendered will be set aside and a new trial granted limited to damages only." The consent was filed by the defendants and on June 30, 1956 a formal order was entered dismissing the plaintiff's motion for a new trial. Though it was unnecessary, the plaintiff obtained leave to appeal from the Appellate Division. See R.R. 2:2-1; R.R. 4:61; cf. State v. Richter, 21 N.J. 421 (1956), certiorari denied 351 U.S. 975, 76 S.Ct. 1039, 100 L.Ed. 1492 (1956); State v. Haines, 20 N.J. 438 (1956); Palm Beach Mercantile Co. v. Ivers, 2 N.J. Super. 5 (App. Div. 1949); 6 Moore's Federal Practice 3891 (2d ed. 1953).

The first point which he urges in support of his appeal is that once the trial court had concluded that the damages awarded by the verdict were inadquate it had no legal power whatever to condition the grant of a new trial upon the defendants' failure to consent to a prescribed increase in the verdict. But see Gaffney v. Illingsworth, 90 N.J.L. 490, 492 (E. & A. 1917); Esposito v. Lazar, 2 N.J. 257, 259 (1949); Elvin v. Public Service Coordinated Transport, 4 N.J. Super. 491, 494 (App. Div. 1949); 1 Bradner, New Jersey Law Practice § 389 (McC. Marsh 1940); Harris, Pleading and Practice in New Jersey § 664 (rev. ed. 1939); Sheen, New Jersey Law Practice 458 (2d ed. 1931). Much has appeared in the law reviews in support of the practices [72] of remittitur and additur as enlightened aids in securing substantial justice between the parties without the burden-some costs, delays and harassments of new trials. See Carlin, "Remittiturs and Additurs," 49 W. Va. L.Q. 1 (1942); Note, "Correction of Damage Verdicts by Remittitur and Additur," 44 Yale L.J. 318 (1934); Note, "Additur in California," 40 Cal. L. Rev. 276 (1952); Note, "Additur and Remittitur," 26 Va. L. Rev. 836 (1940). Cf. Millar, "Notabilia of American Civil Procedure," 50 Harv. L. Rev. 1017, 1052 (1937); Scott, Fundamentals of Procedure in Actions at Law 119-131 (1922). The term remittitur is used to describe an order denying the defendant's application for new trial on condition that the plaintiff consent to a specified reduction in the jury's award, whereas the term additur is used to describe an order denying the plaintiff's application for a new trial on condition that the defendant consent to a specified increase in the jury's award. While it is now recognized that the two practices are logically and realistically indistinguishable, remittiturs have been recognized almost everywhere, whereas additurs are still outlawed in some, though by no means all, of the states. Compare O'Connor v. Papertsian, 309 N.Y. 465, 131 N.E.2d 883 (1956), where the New York Court of Appeals unanimously sustained an Appellate Division order which denied a new trial upon the defendant's consent to increase the $1,000 awarded by the jury to the sum of $2,500, with Dorsey v. Barba, 38 Cal.2d 350, 240 P.2d 604 (1952), where the Supreme Court of California (with Justice Traynor dissenting) held that although its courts could properly deny new trials upon consents by plaintiffs to reductions, they could not properly do so upon consents by defendants to increases. See 25 Fordham L. Rev. 150 (1956); 31 N.Y.U.L.Q. 1537 (1956); 40 Cal. L. Rev., supra; 10 Wash. & Lee L. Rev. 46 (1953).

The English precedents prior to the American Revolution are somewhat obscure and they are discussed in the majority and minority opinions in Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 302, 79 L.Ed. 603 (1935). There Justice [73] Sutherland, speaking for a majority of five (with Justice Stone, joined by Chief Justice Hughes and Justices Brandeis and Cardozo, dissenting) held that although remittitur is permissible in the federal courts, additur is prohibited by the force of the provision in the Seventh Amendment that "the right to trial by jury shall be preserved, and that `no fact tried by a jury shall be otherwise re-examined by any court of the United States, than according to the rules of the common law.'" In Belt v. Lawes (1884), 12 Q.B. 356, the court sustained the denial of a new trial upon the plaintiff's consent to accept a lesser amount than that awarded by the jury; on appeal, Brett, M.R. not only approved the practice followed below but suggested that the court would also have power "to say that the damages given are too small, but that if the defendant will agree to their being increased to such a sum as may be stated, a new trial shall be refused." Cf. Armytage v. Haley (1843), 4 Q.B. 917, 114 Eng. Rep. 1143. In the later case of Watt v. Watt (1905), A.C. 115 the court took an opposite position and rejected the view that a court could condition a denial of a new trial on the plaintiff's acceptance of a reduced verdict. Lord Davey acknowledged that a contrary practice had grown up and that it generally served substantial justice; but he considered that there was a lack of common law power and referred to various judicial dicta to the effect that a jury's award of damages could not be reduced "without the consent of both parties." However, Justice Sutherland in the Dimick case did not follow the result in the Watt case and declined to upset the remittitur practice, first approved by Justice Story in Blunt v. Little, 3 Fed. Cas. No. 1,578 (C.C. Mass. 1822), and since reaffirmed in many federal decisions. See Arkansas Valley Land & Cattle Co. v. Mann, 130 U.S. 69, 9 S.Ct. 458, 32 L.Ed. 854 (1889), and the other cases cited in Moore, supra 3739.

In his dissenting opinion in the Dimick case, Justice Stone pointed out that the Seventh Amendment was concerned with substance rather than form and that the [74] Supreme Court had often declined to construe it as perpetuating in changeless form the minutiae of trial practice as it existed in the English courts in 1791; he referred to the many jury procedures unknown to the common law but now well established in federal practice; he considered wholly impersuasive the suggested differentiation between the settled remittitur practice which the majority continued and the additur practice which it rejected; and he concluded with the following remarks (293 U.S., at page 496, 55 S.Ct., at page 305, 79 L.Ed., at page 616):

"Appellate federal courts, although without common law precedent, have not hesitated to resort to the remittitur where, by its use, the necessity of a new trial could justly be avoided. Bank of Kentucky v. Ashley, 2 Pet. 327, 329, 7 L.Ed. 440, [441]; Phillips & C. Constr. Co. v. Seymour, 91 U.S. 646, 656, 23 L.Ed. 341, [345]; Hopkins v. Orr, 124 U.S. 510, 514, 8 S.Ct. 590, 31 L.Ed. 523, [525]; Washington & G.R. Co. v. Harmon's Adm'r (Washington & G.R. Co. v. Tobriner), 147 U.S. 571, 590, 13 S.Ct. 557, 37 L.Ed. 284, [291]; Hansen v. Boyd, 161 U.S. 397, 411, 412, 16 S.Ct. 571, 40 L.Ed. 746, [751]. The trial judge who denies a motion for a new trial, because the plaintiff has consented to reduce, or a defendant has consented to increase, the amount of the recovery, does no more than when, sitting in equity, he withholds relief upon the compliance with a condition, the performance of which will do substantial justice. See Harrisonville v. W.S. Dickey Clay Mfg. Co., 289 U.S. 334, 338, 53 S.Ct. 602, 77 L.Ed. 1208, [1211].

To me it seems an indefensible anachronism for the law to reject the like principle of decision, in reviewing on appeal denials of motions for new trial, where the plaintiff has consented to decrease the judgment or the defendant has consented to increase it by the proper amount, or to apply it in the one case and reject it in the other. It is difficult to see upon what principle the denial of a motion for a new trial, which for centuries has been regarded as so much a matter of discretion that it is not disturbed when its only support may be a bad or inadequate reason, may nevertheless be set aside on appeal when it is supported by a good one: That the defendant has bound himself to pay an increased amount of damages which the court judicially knows is within the limits of a proper verdict."

The majority opinion in Dimick has been the subject of much criticism and it is doubtful whether the Supreme Court would still subscribe to it; in any event, the Seventh [75] Amendment differs somewhat from our constitutional provision and has no application to proceedings in our state courts. Walker v. Sauvinet, 92 U.S. 90, 23 L.Ed. 678 (1876); Pearson v. Yewdall, 95 U.S. 294, 24 L.Ed. 436 (1877). Cf. Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597 (1900); Fay v. People of State of New York, 332 U.S. 261, 288, 67 S.Ct. 1613, 91 L.Ed. 2043, 2060 (1947). We must look primarily to our own history and precedents in ascertaining whether the highly desirable practices of remittitur and additur may be adhered to in our State without infringement of Art. I, par. 9 of the 1947 Constitution which provides as follows:

"The right of trial by jury shall remain inviolate; but the Legislature may authorize the trial of civil causes by a jury of six persons when the matter in dispute does not exceed fifty dollars. The Legislature may provide that in any civil cause a verdict may be rendered by not less than five-sixths of the jury. The Legislature may authorize the trial of the issue of mental incompetency without a jury."

The Constitution of 1776 had provided (Art. XXII) that "the inestimable right of trial by jury shall remain confirmed, as a part of the law of this colony, without repeal, forever"; and the Constitution of 1844 had provided (Art. I, par. 7) that "the right of trial by jury shall remain inviolate; but the legislature may authorize the trial of civil suits, when the matter in dispute does not exceed fifty dollars, by a jury of six men." But our high courts have consistently recognized that the treasured constitutional right of trial by jury relates to substance rather than form and does not preclude efficient procedural devices which, though perhaps not strictly part of the English common law, are nevertheless wholly consistent with the fundamental right of the parties to have the facts determined by a fair and impartial jury acting under appropriate judicial guidance and control. In Clayton v. Clark, 55 N.J.L. 539, 540 (Sup. Ct. 1893), the court noted that the Constitution provides that the right to trial by jury "shall remain inviolate, not that it [76] shall be unalterable," and later decisions have embodied the same expression. See State v. DeLorenzo, 81 N.J.L. 613, 616 (E. & A. 1911); Sexton v. Newark Dist. Telegraph Co., 84 N.J.L. 85, 101 (Sup. Ct. 1913), affirmed 86 N.J.L. 701 (E. & A. 1914); Robinson v. Payne, 99 N.J.L. 135, 141 (E. & A. 1923). Similarly, in Humphrey v. Eakeley, 72 N.J.L. 424, 426 (Sup. Ct. 1905), affirmed 74 N.J.L. 599 (E. & A. 1907), the court stressed that the constitutional language imports freedom from harm or substantial impairment but not "immunity from all regulation." See State v. Maier, 13 N.J. 235, 276 (1953).

The remittitur practice has been recognized in New Jersey since early days. New Jersey Flax Cotton Wool Co. v. Mills, 26 N.J.L. 60, 63 (Sup. Ct. 1856); Rafferty v. Bank of Jersey City, 33 N.J.L. 368, 372 (Sup. Ct. 1869); Rafferty v. Erie R. Co., 66 N.J.L. 444, 450 (Sup. Ct. 1901); Harris, supra. Not until 1916 was it questioned, but the Court of Errors and Appeals found little difficulty in sustaining it. Heinz v. Delaware, L. & W.R. Co., 90 N.J.L. 198 (E. & A. 1916). Justice Trenchard, speaking for a unanimous court, pointed out that in England the power had been denied in Watt v. Watt, supra (which had in turn overruled Belt v. Lawes, supra), but that in our State it had frequently been invoked "to do substantial justice and save the expense of a new trial" and that it was "in no sense an impairment of the constitutional right of trial by jury." During the following year, the Court of Errors and Appeals had occasion to deal with a negligence case in which the practice of additur had been invoked. Gaffney v. Illingsworth, supra. The jury had returned a verdict of $190.25 and Judge Dungan thereafter announced that if the defendant would consent to pay the sum of $480.50 rather than the amount awarded by the jury, he would deny the plaintiff's application for a new trial; the defendant declined and a new trial limited to damages was awarded. The defendant appealed, contending that the trial court had no authority to set aside a verdict and grant a new trial as to damages alone. Notwithstanding the absence of any such common [77] law power (Scott, supra, 112) the Court of Errors and Appeals summarily disposed of the defendant's contention by reference to the provisions of the Practice Act of 1912 and the implementing court rules, which explicitly provided for new trials limited to damages. See Robinson v. Payne, supra. The defendant also urged that the additur condition imposed by Judge Dungan was beyond his power; in response, Chancellor Walker, speaking for the entire court, had this to say (90 N.J.L., at page 492):

"The power of the court in granting a new trial upon the ground that the damages are excessive, upon terms that a new trial shall be had unless the plaintiff will accept a certain sum named, less than that awarded by a verdict, is too well established to be questioned. It would seem to follow, by parity of reasoning, that when a new trial is granted because the damages are inadequate, the court may impose like terms, that is, terms to the effect that if the defeated party will pay a certain sum, greater than that awarded by the verdict, the rule will be discharged, subject, doubtless, to the power of an appellate court to vacate any such terms when they appear to be an abuse of discretion. No such showing is made on the record before us, and this makes it inappropriate for us to give consideration to the appellant's other contention, namely, that the verdict, as it stands, is adequate and proper and evinces no prejudice or partiality on the part of the jury. As to whether or not the verdict is adequate and proper is, on application for a new trial, a matter of sound discretion in the trial court, and, in the absence of an abuse of discretion, the appellate court cannot review the trial court's action. And with the question of damages, apart from such discretion, we have nothing to do."

The Gaffney case was widely accepted as upholding additur as well as remittitur in our State. Scott, supra, 128; Carlin, supra, 25; Harris, supra; Bradner, supra. Thus, Dean Harris in his book on Pleading and Practice and Professor Marsh in his revision of Bradner stated unequivocally that the trial court had power to condition its denial of a new trial upon the plaintiff's consent to accept a reduced amount or upon the defendant's consent to pay an increased amount. The following summary in 1939 by Dean Harris may be said to have represented the general understanding by the bench and bar:

[78] "In granting a new trial on the ground that the verdict is excessive, the court in its discretion may give the plaintiff the option either of accepting a specified reduced amount of verdict, or being put to a new trial. Similarly, when the verdict is, in the opinion of the court, inadequate, the court may give the defendant the option either of paying a greater sum than awarded by the verdict or of submitting himself to a new trial. The power to impose such terms is inherent in the court and is regulated by the rules of the Supreme Court. Such power may be exercised in contract actions, as well as in tort actions involving unliquidated damages. The exercise of the power of the court in imposing such terms upon the parties is discretionary, and in the absence of an abuse of discretion, not subject to an appeal. This is one of the constitutional prerogatives of the court, which cannot be interfered with by legislation." Harris, supra, § 664.

The delegates to our Constitutional Convention of 1947 included many members of the legal profession who sought to furnish our State with a modern judicial structure which would retain benefits of the old while acquiring advantages of the new. Though aware of the high function of the jury system as an instrument of justice, they knew that it had been constitutionally subject to enlightened judicial controls and regulations which did not impair its basic integrity. Thus they were fully familiar with the trial court's power to withdraw a case from the jury because of the insufficiency of the evidence (Harris, supra, §§ 535, 538), to require that the jury render a special verdict or answer special interrogatories (Harris, supra, § 555), and to grant or deny a total or partial new trial upon terms which might include remittitur or additur (Harris, supra, § 664). At no point during the Constitutional Convention or thereafter was there any suggestion that these preexisting judicial controls and regulations should in anywise be curbed; on the contrary, the significant movement relating to the right to trial by jury was in itself designed to avoid "costly retrials" (1 Record of Proceedings, Const. Conv. of 1947, p. 610) and resulted in the express constitutional provision authorizing the Legislature to provide for five-sixths verdicts in civil cases. Const. 1947, Art. I, par. 9.

Shortly after the adoption of the 1947 Constitution our courts had occasion to deal anew with the practices of [79] remittitur and additur. In Esposito v. Lazar, supra, the jury returned a verdict for plaintiff in the sum of $1,200; the trial court found the damages inadequate and ordered a new trial limited to damages unless the defendant consented to increasing the award to $3,500. The defendant refused and on retrial the jury awarded $3,000. On appeal, this court, in an opinion by Justice Ackerson, approvingly cited Gaffney v. Illingsworth, supra, and expressly recognized that a trial court has discretionary power to deny a new trial upon the plaintiff's consent to accept a reduced amount or upon the defendant's consent to pay a larger amount. See 2 N.J., at page 259. It held, however, that in the case before it the new trial should not have been limited to damages because the original jury verdict appeared to represent a compromise finding on the issue of liability. See Hendrikson v. Koppers Co., Inc., 11 N.J. 600, 608 (1953); Juliano v. Abeles, 114 N.J.L. 510 (Sup. Ct. 1935). Cf. Dahle v. Goodheer, 38 N.J. Super. 210 (App. Div. 1955), certiorari denied 20 N.J. 534 (1956).

In Elvin v. Public Service Coordinated Transport, supra, the Appellate Division summarized the pertinent judicial controls which had been exercised in our old practice and have been continued in our new; in the course of his opinion for the court, Judge McGeehan said:

"In New Jersey, the judge in the trial of a negligence action has certain recognized controls over the jury verdict when he deems it inadequate. Under Rule 3:59-1 the judge may grant a new trial as to all or part of the issues, upon motion made to him. Under Rule 3:59-4 the judge, of his own initiative, may order a new trial for any reason for which he might have granted a new trial upon motion of a party. Further, the judge, in his discretion, may give the defendant the option of paying a stated increase in the amount of the verdict or of going on to a new trial as to the amount of damages, subject to the power of an appellate court to vacate any such terms when they appear to be an abuse of discretion. Esposito v. Lazar, 2 N.J. 257 (1949), which is a control not permitted in the Federal courts; Dimick v. Schiedt, 293 U.S. 474, 79 L.Ed. 603 [1935], or in the English courts (Watt v. Watt (1905), A.C. 115, 6 B.R.C. 1)."

[80] In the light of all of the foregoing, we are satisfied that the practices of remittitur and additur violate none of our constitutional interdictions and, if fairly invoked, serve the laudable purpose of avoiding a further trial where substantial justice may be attained on the basis of the original trial. See Meszaros v. Gransamer, 23 N.J. 179 (1957). Accordingly, we reject the first point urged by the plaintiff and come now to his meritorious contention that, in any event, the prescribed increase to $7,500 was "grossly inadequate and should be set aside." Notwithstanding earlier doubts (Nelson v. Eastern Air Lines, Inc., 128 N.J.L. 46, 55 (E. & A. 1941)) there is now no question as to the power of our appellate courts to reverse a trial court's refusal to grant a new trial (whether or not conditioned on remittitur or additur) where it is satisfied that there has been "an abuse of discretion" (Esposito v. Lazar, supra; Elvin v. Public Service Coordinated Transport, supra) or, in the more modern terminology, "`a manifest denial of justice.'" See Lindroth v. Christ Hospital, 21 N.J. 588, 596 (1956); Conklin v. Miele's Motor Transportation, Inc., 43 N.J. Super. 420, 428 (App. Div. 1957). In the instant matter, we believe that the trial judge had a mistaken notion of the evidence which led to his prescribing the scanty sum of $7,500. He stated that the plaintiff was not entitled to a "great sum, because he certainly did have a back condition before this accident occurred"; but the evidence in the record points to the view that whatever "back condition" the plaintiff had as a result of the 1950 accident had cleared up and had no relation to the very severe injuries resulting from the 1953 accident. Under these highly special circumstances, we believe that the trial court's action should not be permitted to stand and that the interests of justice will best be served by permitting a second jury to pass on the issue of damages. The separable issue of liability was clearly and properly decided against the defendants; under the evidence it could hardly have been determined otherwise and need not be submitted for redetermination. R.R. 4:61-1; Dahle v. Goodheer, supra.

[81] Reversed, with direction for a new trial on the issue of damages.

HEHER, J. (concurring in result).

The right of trial by jury secured by Article I, paragraph 9 of the 1947 State Constitution, as under like guaranties of the 1844 Constitution, Article I, paragraph 7, and the 1776 Constitution, Article XXII, "is the right as it existed at common law and remained on July 2, 1776," not as enlarged by statute, as if "* * * each constitutional provision speaks anew as of the time of the adoption of the instrument of which it is a part * * *." Town of Montclair v. Stanoyevich, 6 N.J. 479 (1951). See Board of Health of Weehawken Tp. v. New York Central R. Co., 10 N.J. 294 (1952). The right "* * * is not to be impaired or diminished, but is to remain as it existed at common law, and according to the practice of the courts anterior to the establishment of the fundamental law." State v. Doty, 32 N.J.L. 403 (Sup. Ct. 1868), Beasley, C.J. See also Howe v. Treasurer of Plainfield, 37 N.J.L. 145 (Sup. Ct. 1874). The jurors "compose the appropriate tribunal for the determination of controverted questions of fact * * *." Kohl v. State, 59 N.J.L. 445 (E. & A. 1896). And see State v. Knight, 96 N.J.L. 461 (E. & A. 1921). Trial by jury as the means of determining "questions of fact" is of great antiquity, importing a jury of 12 men, impartially selected, whose verdict was required to be by the concurrence of all. Brown v. State of New Jersey, 62 N.J.L. 666 (E. & A. 1899), affirmed 175 U.S. 172, 20 S.Ct. 77, 44 L.Ed. 119 (1899). The constitutional requirement that "the right to a trial by jury shall remain inviolate" guarantees "the opportunity to submit common law rights to a tribunal that shall possess the attributes of the historical jury as it existed at the time of the adoption of the organic law." Clayton v. Clark, 55 N.J.L. 539 (Sup. Ct. 1893).

And the constitutional right of trial by jury controls the exercise of judicial power at the trial level to set aside a verdict as contrary to the weight of the evidence and for [82] appellate relief to the same end; the court "may not merely weigh the evidence where it is fairly susceptible of divergent inferences and substitute its own judgment for that of the jury," but if the verdict be "so far contrary to the weight of the evidence as to give rise to the inescapable conclusion of mistake, passion, prejudice, or partiality," it transcends the constitutional province of the jury and is remediable as an excess of power; the court may not set aside a verdict merely because, in its opinion, the jury upon the evidence might well have found otherwise; and this conception of the weight of the evidence applies to civil and criminal cases. Hager v. Weber, 7 N.J. 201 (1951).

As is shown by Justice Sutherland's analysis of the case history in Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935), there was no power in the English courts at the time of the adoption of the New Jersey Constitution of 1776 to increase, either absolutely or conditionally, the damages fixed by a jury in a case such as this. The power to increase the award had been exercised on occasion (a) in actions for mayhem, upon view of the party maimed; (b) where damages had been assessed upon a writ of inquiry, and then upon the ground that the justices might themselves have awarded damages without the writ; and (c) in some of the old cases where the amount of the plaintiff's demand was certain, as, for example, in an action of debt.

In Beardmore v. Carrington, 2 Wils. 244, 95 Eng. Repr. 790, decided in 1764, the holding was that the English courts were without power either to increase or reduce damages in any action for a personal tort, unless in the exceptional cases noted ante. The practice of granting new trials was there termed "modern," a power courts "anciently never exercised," although "in some particular cases they corrected the damages from evidence laid before them." The court continued:

"There is great difference between cases of damages which [may] be certainly seen, and such as are ideal, as between assumpsit, trespass for goods where the sum and value may be measured, and [83] actions of imprisonment, malicious prosecution, slander and other personal torts, where the damages are matter of opinion, speculation, ideal; there is also a difference between a principal verdict of a jury, and a writ of inquiry of damages, the latter being only an inquest of office to inform the conscience of the Court, and which they might have assessed themselves without any inquest at all; only in the case of maihem, Courts have in all ages interposed in that single instance only; as to the case of the writ of inquiry in the Year-Book of H.4, we doubt whether what is said by the Court in that case be right, that they would abridge the damages unless the plaintiff would release part thereof, because there is not one case to be found in the Year-Books where ever the Court abridged the damages after a principal verdict, and this is clear down to the time of [Hawkim v. Sciet] Palmer's Rep. 314, [81 Eng. Repr., 1099] much less have they interposed in increasing damages, except in the case of maihem; * * *."

And in Mayne's Treatise on Damages (9th ed.), 571, the first edition of which was published in 1856, it is said that "in cases where the amount of damages was uncertain their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it." The author continues, p. 580:

"When an excessive verdict is given, it is usual for the judge to suggest to counsel to agree on a sum, to prevent the necessity of a new trial. In the absence of agreement the Court has no power to reduce the damages to a reasonable sum instead of ordering a new trial. It would seem also from what was said in the case in which this was recently decided, that where the damages are too small, the Court cannot with the defendant's consent increase them, if the plaintiff asks for a new trial."

In Watt v. Watt (1905), A.C. 115, 6 B.R.C. 1, 2 Ann. Cas. 672, the House of Lords said the idea that the court could with the consent of the plaintiff reduce the amount of the damages probably arose from the fact that in the old cases the courts had "adopted the somewhat unconstitutional proceeding of refusing to give the plaintiff judgment unless he would consent to reduce his claim to what ought to be considered reasonable," an indirect method implying the need for the plaintiff's assent; and that since the defendant was not likely to refuse his assent to a proceeding intended for his benefit, the theory of the cases seems to [84] have been that the right of the court to interfere with the verdict depended upon the consent of both parties; and the contrary hypothesis here contended for was utterly repudiated as alien to the common law and sound English practice.

The Earl of Halsbury, L.C. there affirmed that the Court of Appeal "has no jurisdiction to fix the amount of damages without the consent of both parties"; he attributed the "confusion" in this regard to the practice upon demurrer or default, where the court may have the sheriff assess the damages, the usual course, or "* * * decide that question for itself — probably because that question is often a question of law, where the damages are fixed by law * * *," and he noted the "* * * distinction between trial by jury and mere inquisition or inquiry by a jury to assess damages — that, in the latter case the inquisition was only to inform the mind of the court and it was at their discretion whether they would award judgment for the amount found by the jury, where as upon a trial they had no jurisdiction to interfere as to the amount of damages in cases of tort," citing Reeves' History of the Common Law, and that the "theory of all the cases seems to me to be that the right of the court to interfere with a jury's verdict was only to be by the assent of both parties."

And Lord Robertson declared the contrary view "is on principle indefensible."

In the later case of Barber & Co. v. Deutsche Bank (1919), A.C. 304, H.L., Lord Phillimore affirmed the true principle to be this:

"Where damages are at large and the Court of Appeal is of opinion that the sum awarded is so unreasonable as to show that the jury has not approached the subject in a proper judicial temper, has admitted considerations which it ought not to have admitted, or rejected or neglected considerations which it ought to have applied, it is the right of the party aggrieved to have a new trial. He is not to be put off by the Court saying that it will form its opinion as to the proper sum to be awarded, and reduce or enlarge the damages accordingly. He is entitled to an assessment by a jury which acts properly. He is not to be put off by a composite decision, [85] or I might describe it as a resultant of two imperfect forces — an assessment partly made by a jury which has acted improperly and partly by a tribunal which has no power to assess."

And so, in Dimick v. Schiedt, supra, Justice Sutherland concluded, and with unquestionable authority, that "while there was some practice to the contrary in respect of decreasing damages, the established practice and the rule of the common law, as it existed in England at the time of the adoption of the Constitution, forbade the court to increase the amount of damages awarded by a jury in actions such as that here under consideration." He observed that "this court in a very special sense is charged with the duty of construing and upholding the Constitution; and in the discharge of that important duty, it ever must be alert to see that a doubtful precedent [involving remittitur] be not extended by mere analogy to a different case if the result will be to weaken or subvert what it conceives to be a principle of the fundamental law of the land"; and that "the power to conditionally increase the verdict of a jury does not follow as a necessary corollary from the power to conditionally decrease it," since in the case of a conditional remittitur "a jury has already awarded a sum in excess of that fixed by the court as a basis for a remittitur, which at least finds some support in the early English practice, while in the second case, no jury has ever passed on the increased amount, and the practice has no precedent according to the rules of the common law."

The "controlling distinction between the power of the court and that of the jury," said Justice Sutherland, "is that the former is the power to determine the law and the latter to determine the facts," and while the remittitur practice in the case of an excessive verdict "is not without plausible support in the view that what remains is included in the verdict along with the unlawful excess, — in the sense that it has been found by the jury, — and that the remittitur has the effect of merely lopping off an excrescence," yet where an inadequate verdict is increased by the court there is a "bald addition of something which in no sense can be [86] said to be included in the verdict," and if that be done with the consent of the defendant alone, the plaintiff is compelled to forego his "constitutional right to the verdict of a jury and accept `an assessement partly made by a jury which has acted improperly, and partly by a tribunal which has no power to assess.'"

It was there pointed out that while the remittitur practice had acceptance in the federal jurisdiction for more than a century, following Justice Story's ruling at the circuit in Blunt v. Little, Fed. Cas. No. 1,578, 3 Mason 102 (C.C. 1822), no federal court had undertaken to increase a jury award of damages, although there are numerous cases in which a new trial was granted for inadequate damages. And this is equally true of New Jersey, save that in Gaffney v. Illingsworth, 90 N.J.L. 490 (E. & A. 1917), a new trial was ordered unless the defendant would consent to an increase of the jury's verdict of $190.25 for the plaintiff to $480.50. In Esposito v. Lazar, 2 N.J. 257 (1949), error was found in the award of a new trial limited to damages in that the amount of the verdict indicated a "compromise" on liability.

There can be no doubt that the additur practice sanctioned here contravenes the essence of the common-law right of trial by jury at the time of the adoption of the 1776 Constitution, then and ever since a basic right under the law of England; and this is the very substance of our own constitutional guaranty. We are still a common-law State; and the essential principles of the common law are in force except as modified by our own Constitution and statutes enacted in keeping with the Constitution. This, in virtue of an explicit constitutional mandate. Taneian v. Meghrigian, 15 N.J. 267 (1954).

The reasoning of the minority in Dimick proceeds on the hypothesis, "long accepted in the federal courts," that the "exercise of judicial discretion in denying a motion for a new trial, on the ground that the verdict is too small or too large, is not subject to review on writ of error or appeal," a "special application of the more general rule that an [87] appellate court will not re-examine the facts which induced the trial court to grant or deny a new trial," and the unwilling plaintiff whose inadequate verdict has been increased by the court "has suffered no denial of a right because the court, staying its hand, has left the verdict undisturbed, as it lawfully might have done if the defendant had refused to pay more than the verdict," and, although the common law had made no rule on the subject in 1791, the court could not "rightly refuse to apply to either the principle of general application that it is competent to exercise a discretionary power to grant or withhold relief in any way which is not unjust," analogizing the judge's function, "when sitting in equity," to withhold "relief upon the compliance with a condition, the performance of which will do substantial justice," citing Belt v. Lawes, L.R. 12 Q.B. Div. 356 (C.A. 1884), a remittitur case overruled by the House of Lords in Watt v. Watt, cited supra.

But this rationale does not take into account the basic quality of our own constitutional right of trial by jury, after the mode and manner and essentiality of the common law, to this very day "the glory of the English law" and "the most transcendant privilege which any subject can enjoy," to use the words of Blackstone, Bk. 3, p. 379. And the additur principle is without general acceptance in this country, and for the given reasons. See annotation to Dimick in 95 A.L.R. 1163; Burdict v. Missouri Pac. Ry. Co., 123 Mo. 227, 27 S.W. 453, 26 L.R.A. 384 (Sup. Ct. 1894); also 39 Am. Jur. 206; 3 Am. Jur. 688. It is a doctrine of the civil law. Southall v. Smith, 151 La. 967, 92 So. 402, 27 A.L.R. 1194 (Sup. Ct. 1922); Stoehr v. Payne, 132 La. 213, 61 So. 206, 44 L.R.A., N.S. 604 (Sup. Ct. 1913). The question is one of constitutional power rather than procedural expediency.

No one would contend that the court has an absolute right to assess unliquidated damages in an action at law for a personal tort; and yet can it be other than that when the court in these circumstances imposes its judgment on the unwilling plaintiff? We are not concerned here with an [88] action for liquidated damages, or damages fixed by a mere mathematical calculation from ascertained data or capable of certain computation on the record made, or a submission to the court without a jury on a stipulation of the facts. See 3 Am. Jur., Appeal and Error, section 1180.

If the trial judge has the power asserted here, so also is it the province of this court on a review of the sufficiency or insufficiency of an award by a jury. The issue of the weight of the evidence is now cognizable on appeal. Hager v. Weber, supra. R.R. 1:5-3 provides that a verdict of a jury "shall be set aside as against the weight of the evidence if, having given due regard to the opportunity of the trial court and the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion." And yet this court does not undertake to supply the deficiency in the assessment of the damages by the trial judge, nor remand the cause for a reassessment by the judge, but directs a new jury trial limited to damages.

I concur in this result.

Mr. Justice OLIPHANT joins in this opinion.

HEHER and OLIPHANT, JJ., concurring in result.

For reversal — Chief Justice VANDERBILT, and Justices HEHER, OLIPHANT, BURLING, JACOBS and WEINTRAUB — 6.

For affirmance — None.