Estabrook v. Nacken

264 A.D. 883, 35 N.Y.S.2d 603, 1942 N.Y. App. Div. LEXIS 5242

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 1942
• Status: Published

Opinion

— In this action by an infant plaintiff to recover damages for personal injuries, and by her father to recover for medical expenses and for loss of the infant’s services as a result of an automobile accident, a verdict in favor of the infant plaintiff and her father was set aside as to her, on motion of the plaintiffs, because of inadequacy of damages, and a new trial of her action was ordered, while a judgment was entered upon the verdict in favor of the plaintiff father. Although the plaintiff-father’s cause of action for loss of services is derivative and depends on the infant-plaintiff’s right to recover for personal injuries, since the verdict in favor of the infant-plaintiff was not set aside for any reason pertaining to her right to recover but only because of the quantum of her recovery, the judgment and order appealed from must be affirmed. The infant’s action for personal injuries and the father’s action for loss of services could have been prosecuted separately in the first instance; and the procedure adopted by the trial court in permitting the judgment entered upon one cause of action to stand while granting a new trial of the other cause of action has been recognized in Clancy v. Toal (254 App. Div. 166) and Egan v. City of New York (263 id. 387). Judgment of the County Court of Nassau County, and order setting aside the verdict and granting a new trial to the infant-plaintiff, unanimously affirmed, with costs. Present ■— Lazansky, P. J., Hagarty, Adel, Taylor and Close, JJ.