Caulfield v. Elmhurst Contracting Co. , 270 A.D. 854 ( 1946 )

— Plaintiff’s intestate was struck by a boom attached to a crane $owned and operated by defendant, and suffered injuries from which he died. Plaintiff obtained a verdict for $70,000. Defendant moved- to set aside the verdict and for a new trial. The court denied the motion upon all the grounds urged, except excessiveness, and subsequently granted the motion unless plaintiff, within' twenty days thereafter, stipulated to reduce the verdict to $55,000, in which event the motion was denied. An order to that effect was entered on January 8, 1946. Plaintiff did not so stipulate but appealed from the order, and also obtained an order staying all proceedings on the part of defendant under the order of January 8, 1946, except to appeal therefrom, and extending plaintiff’s time to sign the stipulation provided for in the order of January 8, 1946, until ten days after the determination of this appeal. Decedent was 31 years old and had a life expectancy of 34.62 years. For about 15 years he had been employed by the Todd Shipyards, first as a dry dock hand, and later as a foreman, and at the time of his death he was assistant doekmaster, earning a weekly salary of $96. He had never been sick. He left him .surviving a widow 31 years of age, and three children aged 11, 7 and 4 years, respectively, and another child bom posthumously. Order reversed on the facts, the motion denied and the verdict reinstated, with costs to appellant. The verdict, is supported by the evidence and the amount thereof may not be said to be excessive. Carswell, Acting P. J., Johnston, Aldrich and Nolan, JJ., concur; Adel, J., dissents and votes to affirm.