Headnote
Appeal from Trial Term, Albany County. Action by Effie M. Ainsworth, as administratrix of William I. Ainsworth, deceased, against the New York Central & Hudson River Railroad Company. From a judgment on an assessment of damages in favor of plaintiff for $20,345.50, and from an order denying a motion to set aside the award and assessment of damages and for a new assessment of damages, defendant appeals. Reversed, and new trial granted, unless plaintiff stipulates to reduce the recovery.Judgment and order reversed, and new trial granted, with costs- to appellant to abide event, .unless the plaintiff stipulates to reduce the verdict to $12,000, and if she so stipulates the judgment is modified, and, as so modified, judgment and order affirmed, without costs.
(dissenting). Í vote to affirm this judgment, and expressly dissent from that part of the decision which provides for a reduction of the amount of the recovery. In my judgment, this is not a case calling for any such action by this court. The plaintiff’s intestate was a man 42 years of age, intelligent, fairly well educated, sober, and industrious, a respected member of society. He was actually earning at the time of his death $1,200 per annum, and had all the chances of a good American citizen to increase this amount indefinitely. He left a widow and two young children, the latter of the ages of 12 and 7 years, respectively. The breadwinner of this family is dead by the negligent act of the defendant. The actual financial loss possibly largely- exceeds the recovery, and the loss to these children of the companionship, advice, counsel, and guidance of a good father is difficult to overestimate. A jury of 12 men has fixed what I regard as a reasonable sum. The litigation has been protracted and expensive, and I do not think the alternative should be forced upon the plaintiff of accepting a reduction or the burden of a new trial.
HOWARD, J., concurs.