JOSEPHSON v. WIBREW,15 A.D.2d 533[2d Dept 1961]
MARTIN JOSEPHSON, as Administrator of the Estate of BARBARA JOSEPHSON,
Deceased, Respondent-Appellant, et al., Plaintiff, v. GERARD D. WIBREW et
al., Respondents, and GERSON FRYDMAN et al., Appellants.
Appellate Division of the Supreme Court of New York, Second Department.
In an action to recover damages for decedent's wrongful death and for her conscious pain and suffering, the parties cross-appeal as follows from a judgment of the Supreme Court, Queens County, entered December 15, 1960 after trial, upon the jury's verdict of $115,000 for the wrongful death, in favor of the plaintiff administrator against defendant Frydman and defendant hospital; upon the jury's verdict of $34,000 for the pain and suffering, in favor of the plaintiff administrator against defendant Frydman; upon the jury's verdict of $14,000 for the pain and suffering, in favor of the plaintiff administrator against the defendant hospital; and upon the jury's verdict in favor of the two Wibrew defendants against the plaintiff administrator: Plaintiff administrator appeals from so much of the judgment as is in favor of the two Wibrew defendants and against him. Defendant hospital appeals from so much of the judgment as is in favor of the plaintiff administrator and against it. Defendant Frydman appeals from so much of the judgment as is in favor of the plaintiff administrator and against him and the hospital. On appeal by the plaintiff administrator: Judgment, insofar as appealed from, affirmed, with costs. On appeal by defendant Frydman and defendant hospital: Judgment insofar as appealed from reversed on the facts and, as to said defendants, action severed and new trial ordered, with costs to abide the event, unless, within 30 days after entry of the order hereon, the plaintiff administrator shall stipulate: (a) to reduce to $75,000 the verdict of $115,000 in his favor as against both of said defendants jointly on the cause of action for wrongful death, and to modify the judgment accordingly; (b) to reduce to $14,000 the verdict of $34,000 in his favor as against the defendant Frydman on the cause of action for pain and suffering, and to modify the judgment accordingly; and (c) to amend the respective verdicts of $34,000 against the defendant Frydman and $14,000 against the defendant hospital so as to provide for one verdict of $14,000 against both of said defendants jointly on the cause of action for pain and suffering, and to modify the judgment accordingly. In the event such stipulation be filed within the time prescribed, then the judgment as so modified by the stipulation, and insofar as appealed from by said defendants, is affirmed, without costs. In our opinion, the verdicts rendered by the jury for the damages for the death and for the pain and suffering were excessive. It is also our opinion that it was error to admit in evidence the photograph, but that the error may be disregarded pursuant to section 106 of the Civil Practice Act. The verdict with respect to the cause of action for conscious pain and suffering was erroneous in form but not as a matter of substance, andPage 534may be corrected without the necessity of a new trial (Polseyv.Waldorf-Astoria,216 App. Div. 86;Kinseyv.SpencerSon Corp.,165 Misc. 143, affd.255 App. Div. 995, affd.281 N.Y. 601;Farberv.Demino,254 N.Y. 363). In any event, the error becomes immaterial, in view of our determination with respect to the amount of such verdict. Nolan, P.J., Beldock, Kleinfeld, Christ and Pette, JJ., concur.