Arthur v. Smith , 5 A.D.2d 997 ( 1958 )

In an action to recover damages for wrongful death and for conscious pain and suffering, the appeal is from a judgment entered on a jury verdict in favor of the administrator for $2,500 for conscious pain and a suffering, and for $20,000 for wrongful death. Judgment, insofar as it awards damages for conscious pain and suffering, affirmed, without costs, and action severed. No opinion. Judgment awarding damages for wrongful death reversed and a new trial granted, with costs to appellants to abide the event, unless within 10 days after the entry of the order hereon respondent stipulate to reduce the verdict in the cause of action for wrongful death to $12,500 with interest, from the . date of death at 4% as against the appellant village^ and at 6% as against the individual appellant, in which event the judgment, as so reduced, is affirmed, without costs. The intestate was a housewife, with no earning capacity and with a life expectancy of about eight years. Special damages amount to approximately $1,200. In these circumstances, the verdict of $20,000 was excessive. The interest rate, as against the appellant village, is limited by statute to 4% (General Municipal Law, § 3-a, subd. 2). Nolan, P. J., Wenzel and Kleinfeld, JJ., concur; Beldock, J., concurs in the affirmance of the judgment for conscious pain and suffering, but dissents from the conditional reversal of the judgment for wrongful death, and votes to affirm that judgment without reduction, Ughetta, J., with respect to the appellant Bullen, concurs in the affirmance of the judgment for conscious pain and suffering and in the conditional reversal of the judgment for wrongful death, hut, with respect to the appellant village, dissents and votes to reverse said judgments and to dismiss the complaint, with the following memorandum: On this record no liability on the part of the village has been established.