Conford, Kolovsky and Carton. The opinion of the court was delivered by Carton, J.A.D.
This case concerns the legal effect of an order granting additur in a negligence action. The order mandated that defendant accept the additur within 20 days or suffer a new trial as to damages only. Defendant first sought appellate review of the order and when review was denied attempted to exercise its option to accept the additur beyond the 20-day period.
The jury returned verdicts of $2500 and $1000 in favor of the injured plaintiff Lillian Keeley and her husband George Keeley, respectively. They moved for a new trial as to damages only. In ruling on the motion, the trial court, on July 30, 1970, ordered that, upon the filing of a written consent by defendant within 20 days, an amended judgment should be entered increasing the damage award for the wife to $7,500 and that of the husband to $3,000. The order further provided that, upon defendant's failure to file written consent "as aforesaid," an order should be entered granting plaintiffs' motion for new trial as to damages only.
Defendant then sought leave to appeal the July 30 order. We denied that motion on September 17. A few days later defendant filed its consent to the entry of the judgment for the increased amounts. Insisting that the time for accepting the additur had expired, plaintiffs applied to the trial court for an order granting a new trial as to damages only. The court agreed and granted their application. It later denied defendant's motion to vacate that order. We granted leave to appeal from the denial of the latter motion.
Defendant contends that its application for leave to appeal tolled the 20-day period permitted for acceptance
of the additur in the July 30 order. On this thesis the option contained in the order remained viable until this court decided the motion for leave to appeal.
We disagree. The underlying theory of the remittitur and additur practices contravenes such a rationale.
The additur and remittitur practices were described with approval in Fisch v. Manger , 24 N.J. 66, 72 (1957), as "enlightened aids in securing substantial justice between the parties without the burdensome costs, delays and harassments of new trials." Since the order granting an additur is on condition, its effect is to confer an option upon the defendant. "The option of accepting an additur rests with a defendant and if defendant accepts it, the judgment should reflect the added sum without regard to plaintiffs [ sic ] wish." Bitting v. Willett , 47 N.J. 6, 9 (1966). "[I]f the defendant thinks the additur too high, he may protect himself, for he has the absolute right to refuse to pay it and to take a new trial by jury instead, * * *." Moran v. Feitis , 69 N.J. Super. 531, 541 (App. Div. 1961), certif. den. 36 N.J. 299 (1962).
But it must be observed that the opportunity given by the order to accept additur is limited to the terms specified in the order which creates that option. It cannot be deemed to remain open indefinitely. So to hold would do violence to the express language of the order. It would enlarge its terms beyond all recognition.
Here, instead of accepting the additur within the 20-day period prescribed by the order, defendant sought to appeal that order to this court. Not having accepted its terms before the expiration date, defendant must be considered to have exercised its option by the appeal and to have refused to pay the increased award. See 66 C.J.S. New Trial § 209g, at 527-528:
If the party having the option to remit a part of his recovery or submit to a new trial appeals from the order before the expiration of the time limited therein for the exercise of the option, he is deemed to have ...