Maher v. Schulang — 117 N.Y.S. 928

Majority

p. 928

MAHER v. SCHULANG.

(Supreme Court, Appellate Term.

June 29, 1909.)

Headnote

Damages (§ 130^[1] )—Inadequate Damages.

A verdict awarding $100 to a woman injured by a fall held Inadequate under the evidence.

[Ed. Note.—For other cases, see Damages, Dec. Dig. § 130.^[1] ]

Seabury, J., dissenting.

Appeal from Municipal Court, Borough of Manhattan, Eighth District.

Action by Katherine A. Maher against Philip Schulang. From an order of the Municipal Court, denying plaintiff’s motion to vacate a judgment and for a new trial, she appeals.

Reversed.

Argued before GILDERSLEEVE, P. J., and MacLEAN and SEABURY, JJ.

Steiner & Petersen, for appellant.

James, Schell & Elkus, for respondent.

As uncontradictedly testified by the plaintiff, with corroboration by the defendant’s janitor, she, tripped by a hole in the carpet common to the use of the defendant’s tenants, suffered a painful injury, which for a time prevented her doing her household work, required repeated medical and surgical attendance, and the help of a woman, continually at first and once a week at the time of the trial, causing an undisputed outlay of $80. She was awarded $100. It would seem that, if her evidence was credible enough to entitle her to any compensation for her pain and disability, it entitled her to more.

The order denying the plaintiff’s motion to set aside and vacate the

Dissent

p. 929

judgment must be reversed, the judgment vacated, and a new trial ordered, with costs to appellant to abide the event.

GILDERSLEEVE, P. J., concurs.

I do not think that the ruling of the trial justice before whom the action was tried should be disturbed. He was not obliged to accept as true the testimony offered by the plaintiff as to the extent of her damage, and the order appealed from should be affirmed.