Katz v. Brooklyn Heights R. Co. — 71 N.Y.S. 744

Majority

p. 744

(35 Misc. Rep. 302.)

KATZ v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Term.

June, 1901.)

Headnote

Damages—Personal Injuries.

Where plaintiff sues for personal injuries, a judgment on a verdict allowing him the amount of his necessary medical expenses, but nothing for his injuries, will be reversed.

Appeal from municipal court, borough of Manhattan, Fourth district.

Action by Henry Katz against the Brooklyn Heights Railroad Company. From an order opening defendants’ default, and from a judgment rendered for plaintiff for an alleged insufficient amount, he appeals. Reversed.

Argued before SCOTT, P. J., and BEACH and FITZGERALD, JJ.

I. Cohn, for appellant.

Sheehan & Collin, for respondent.

We have concluded not to interfere with the order opening defendant’s default; the disposition of such matters resting so largely within the discretion of the trial justice that his discretion will not be disturbed save in case of most manifest injustice. The order is affirmed, with $10 costs.

The second trial was submitted to the learned justice for decision by consent, the jury having failed to agree. He ordered judgment for plaintiff in the sum of $65. This was the reasonable value of the services of the plaintiff’s physician, as testified to on the trial. Having thus succeeded upon the issue of negligence, the plaintiff is without any compensation for his own injuries, being only repaid the reasonable value of his doctor’s services. This is an injustice, and cannot be tolerated.

Judgment reversed, and new trial ordered, with costs.