Burns v. Houston, West Street & Pavonia Ferry Railroad — 71 N.Y. St. Rep. 864

Majority

p. 864

Michael F. Burns, as Administrator, etc., Resp’t, v. Houston, West Street and Pavonia Ferry Railroad Company, App’lt.

(New York Superior Court, General Term,

Filed December 18, 1895.)

Headnote

Appeal—Harmless error.

A defendant in an action for death by wrongful act, is not prejudiced by an amendment of the complaint, permitting plaintiff to increase his demand for damages,°where the verdict" of the jury does not exceed the former limitation.

Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial. •

Henry A. Robinson, for app’lt;

William Sulzer, for resp’t.

Although it has been decided by the court of appeals that the constitutional provision that the amount recoverable in an action for damages for injuries resulting in death shall not be subject to any statutory limitation does not operate retrospectively, and does not affect causes of action accrued before the said constitutional provision went into effect, the defendant in the case at bar was not prejudiced by the amendment permitting the plaintiff to increase the demand for damages from $5,000 to $25,000, as the verdict of the jury did not exceed the limit of $5,000. Upon a careful review of the whole case, it clearly appears that the case was one for the jury, both upon the question of negligence and the question of contributory negligence; that no error was committed in the admission of evidence, or in refusing to dismiss the complaint; and that the verdict is not against the evidence, or against the weight of the evidence. Moreover, the verdict should not be disturbed as excessive.

The judgment and order should be affirmed, with costs.

All concur.

p. 865

Memoranda of cases in which, no opinions were written