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Koehler v. Interurban Street Railway Co.

88 N.Y.S. 1056 Court N.Y. App. Term Decision date 1904-06-23 English

Delivered by SCOTT, J.

Contents

Majority

p. 1056
KOEHLER v. INTERURBAN ST. RY. CO.
(Supreme Court, Appellate Term.
June 23, 1904.)

Headnote

1. Damages—Infancy—Physician’s Services.
The value of a physician’s services is not a proper element of damage to an infant.
2. Same—Refusal to Strike Out Evidence—Presumption.
Where, in an action for damages by an infant, the justice refused to strike out evidence as to the value of physician’s services, it will be presumed that the value of the services was included in the amount for ' which judgment for plaintiff was given.
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by Charles Koehler, an infant, against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Conditionally affirmed.
Argued before FREEDMAN, P. J., and MacLEAN and SCOTT, JJ.
Henry W. Goddard and William E. Weaver, for appellant.
Joseph I. Green, for respondent.

The justice should have granted the motion to strike out the evidence as to the value of the physician’s services, as that was not a proper element of the damage to the infant. As he did refuse to strike the evidence out, we are bound to presume that he included the amount in the sum for which he gave judgment. If the

p. 1057
plaintiff will within 10 days stipulate to reduce the judgment by $50, the judgment as so modified will be affirmed, without costs; otherwise it must be reversed and a new trial granted, with costs to appellant to abide the event. All concur.