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Gubbitosi v. Rothschild

78 N.Y.S. 286 Court N.Y. App. Div. Decision date 1902-11-07 English

Judges Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

Delivered by INGRAHAM, J.

Contents

Majority

p. 286
(75 App. Div. 477.)
GUBBITOSI v. ROTHSCHILD et al.
(Supreme Court, Appellate Division, First Department.
November 7, 1902.)

Headnote

1. Wrongful Death — Infants—Verdict—Inadequacy.
Where a jury awarded a verdict of $200 for the wrongful killing of an infant six years of age, the trial court was not justified in setting it aside as inadequate.
Appeal from trial term, New York county.
Action by George Gubbitosi, as administrator of the estate of James Gubbitosi, deceased, against Isaac Rothschild and another. From an order setting aside a verdict as inadequate ( 74 N. Y. Supp 775 ), defendants appeal.
Reversed.
Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.
Carl Schurz Petrasch, for appellants.
Louis Oppenheim, for respondent.

The action was brought to recover damages for the negligent killing of the plaintiff’s son, a boy not quite six years of age. The jury awarded the plaintiff $200, when, upon motion of the plaintiff, the court set aside this verdict and directed a. new trial upon the ground that amount allowed was inadequate. No other error is alleged which would justify the court in setting aside this verdict. We have lately held, in the case of Terhune v. Contracting Co., 72 App. Div. 1 , 76 N. Y. Supp. 255 , that in an action of this character, where the jury are required to ascertain the pecuniary injury caused to the next of kin by the death of the decedent, and the verdict is limited to such a sum as the jury deem to be fair and just compensation for such pecuniary injuries to the person or persons for whose benefit the action is brought, the court is unable to say that in the case of the killing of a young child the death of the child had caused pecuniary loss to the child’s parents, and that, where a substantial amount has been awarded, the trial court is not justified in setting aside the verdict on the ground that it is inadequate.

It follows that the order appealed from must be reversed, and the motion for a new trial denied, but, under the circumstances, without costs.

All concur; LAUGHLIN, J., in result.

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