Cady v. City of New York

Appellate Division of the Supreme Court of New York

Cady v. City of New York

19 A.D.2d 822, 243 N.Y.S.2d 661, 1963 N.Y. App. Div. LEXIS 3057

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 29, 1963

StatusPublished

This text of 19 A.D.2d 822 (Cady v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cady v. City of New York, 19 A.D.2d 822, 243 N.Y.S.2d 661, 1963 N.Y. App. Div. LEXIS 3057 (N.Y. Ct. App. 1963).

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Opinion

Order, entered on March 29, 1963, unanimously reversed on the law, with $20 costs and disbursements to appellant, and the motion granted. In this action damages are sought for personal injuries and wrongful death of a deceased fireman, who had been in the employ of defendant city. 'The latter in its amended answer alleged as a partial affirmative defense and" in mitigation of damages that the widow of decedent was receiving and would receive during her lifetime a stated sum annually in the form of a pension granted by the Pension Fund of the Fire Department of the city. The amount, it was alleged, constitutes one half of the salary of deceased. The fund is composed of moneys received from various sources including contributions made by members of which decedent was one. If the amounts from all other sources are insufficient to pay pensions and benefits the Board of Estimate of the city is mandated to appropriate the deficiency. (Administrative Code of City of New York, § B19-3.0.) We conclude that the pension payments sought to be offset are from a collateral source and proof thereof would not be admissible upon the trial in mitigation of damage. (Nealy v. Rennert, 9 N Y 2d 202, 206; Lehr v. City of New York, 16 A D 2d 702; United States v. Price, 288 F. 2d 448, 450, 451.) Concur — Botein, P. J., Breitel, McNally, Stevens and Bastow, JJ.

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Order, entered on March 29, 1963, unanimously reversed on the law, with $20 costs and disbursements to appellant, and the motion granted. In this action damages are sought for personal injuries and wrongful death of a deceased fireman, who had been in the employ of defendant city. 'The latter in its amended answer alleged as a partial affirmative defense and" in mitigation of damages that the widow of decedent was receiving and would receive during her lifetime a stated sum annually in the form of a pension granted by the Pension Fund of the Fire Department of the city. The amount, it was alleged, constitutes one half of the salary of deceased. The fund is composed of moneys received from various sources including contributions made by members of which decedent was one. If the amounts from all other sources are insufficient to pay pensions and benefits the Board of Estimate of the city is mandated to appropriate the deficiency. (Administrative Code of City of New York, § B19-3.0.) We conclude that the pension payments sought to be offset are from a collateral source and proof thereof would not be admissible upon the trial in mitigation of damage. (Nealy v. Rennert, 9 N Y 2d 202, 206; Lehr v. City of New York, 16 A D 2d 702; United States v. Price, 288 F. 2d 448, 450, 451.) Concur — Botein, P. J., Breitel, McNally, Stevens and Bastow, JJ.

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Bluebook (online)

19 A.D.2d 822, 243 N.Y.S.2d 661, 1963 N.Y. App. Div. LEXIS 3057, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cady-v-city-of-new-york-nyappdiv-1963.

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