Cunningham, in England at the time of the trial, had directed his agent, Robert Waddel, to appeal in the event the jury awarded damages exceeding the instructional minimum, and to this end minutes of the evidence had been taken at the trial. But when the verdict was rendered, counsel for the defendant, at the instigation of William Smith, Jr., were agreed not to participate in such a measure. Therefore, George Harrison, a notary public, moved the court for an appeal agreeable to the royal instructions, tendered four sufficient securities, the minutes taken at the trial, and a certified copy of the governor's instructions, and also moved for entrance of the motion in the court minutes. The court, with some heat, refused the motion, saying it knew of no appeals from it but by writ of error. To which Harrison replied that his appeal was upon the merits, knowing of no error in the proceedings. 184 On the next day, October 27, James Duane for the defendant moved the court to set aside the verdict for excessive damages and to grant a new trial on payment of costs. The court, being of the opinion that it could neither mitigate the damages nor order a new trial, upon motion of plaintiff counsel ordered judgment entered with ,£75/19/6 costs. 185 Thereupon Waddel delivered into court a petition of appeal, a proper bond executed by four substantial persons in ,£3,000 penalty, and a copy of the royal instructions. A prayer that these instruments be received and read was refused, as was a motion that the application be made a court minute. The court informed Waddel that the application was based on a misconstruction of the governor's instruction, which gave only a writ of error, that the instruction was directed to the governor, not to the court, and that the court were judges of the law and were not to be directed by any royal instructions. 186 After close of the court term, a further petition of appeal was presented by Cunningham's attorney to Lieutenant-Governor Colden, together with a bond Cunningham, 2). See also ibid., 8-9 (a version of the trial proceedings by Chief Justice Horsmanden), and 2 Journals General Assembly N.Y., 803. As to the justness of the quantum of damages, see 2 Aspinwall Papers, 536-37. 555- 184 N.Y. State Lib. MS, A 2699; 4 Wm. Smith MSS, sub Autumn, 1764. Cf. "A narrative of such of the proceedings in an appeal, brought by Mr. Cunningham from the Supreme Court to the Governor and Council, as do not appear in the minutes of Council, Dec. 6, 1764" (CO 5/1071/PP 67). 185 MS Mins. N.Y. Sup. Ct. fud. (Rough), 1764-67, sub Oct. 27, 1764. For the judgment roll see N.Y.H.R. Parch., 21-A-8. Cf. Rep. Forsey v. Cunningham, 9. The Supreme Court's view on mitigation of damages was orthodox, Sayer (Law of Damages [1770], 173) stating that "the power of abridging such damages, [those assessed by a jury] is not at this day exercised in any action." However, the prevailing English view recognized the discretionary power of the bench to set aside verdicts for excessive damages and grant new trials; see Ash v. Ash (Comberbach 357); Wilford v. Berkeley (1 Burr. 609); Leeman v. Allen (2 Wilson K.B. 160). Support for the Supreme Court's stand is sparse, but see Townsend v. Hughes (2 Mod. 150). 18S N.Y. State Lib. MS., A 2699; 4 Wm. Smith MSS, sub Autumn, 1764. Cf. 2 Journals General Assembly N.Y., 804; Rep. Forsey v. Cunningham, 68.