Leonard v. Volz

190 A.D. 748, 180 N.Y.S. 607, 1920 N.Y. App. Div. LEXIS 4238

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 27, 1920
• Status: Published

Opinion

Per Curiam:

Jeanne Leonard was injured by the negligent operation of an elevator in the apartment house owned by the defendant, in which she was a tenant. She brought an action for these injuries, and her husband sued for loss of services arising from the same injury. The actions were tried together. The jury returned a verdict in the case of Mrs. Leonard for $10,000 damage “ and no damages for the husband.” The court thereupon directed the verdict to be entered in Mrs. Leonard’s action for the plaintiff in the sum of $10,000, and for the defendant in the husband’s action. The verdicts as thus entered would be inconsistent and would have to be set aside. (Gray v. Brooklyn Heights R. R. Co., 175 N. Y. 448.) Being general verdicts, it would appear that the jury had found in one case that the defendant was negligent and the plaintiff free from contributory negligence, while upon the same facts it had found that the defendant was not negligent or that the plaintiff’s wife was chargeable with contributory negligence. The verdicts, however, as rendered by the jury were consistent. Mrs. Leonard was in a lucrative business; she paid the household expenses and the medical and other expenses incurred by reason of the injury. The verdict was that, in one case, there was injury with damage and, in the other case, injury without damage. The court should, therefore, have directed that the verdict be entered in the husband’s action for nominal damages. We have carefully examined the record and find no error therein requiring a new trial. Under the power conferred upon this court by section 1317 of the Code of Civil Procedure, we can correct this irregularity.

The judgment and order in the action of Jeanne Leonard against the defendant is affirmed, with costs. The order in the action of Julian Leonard against the defendant is affirmed and the judgment reversed, without costs, and judgment directed to be entered for the plaintiff for six cents damages.

Present — Clarke, P. J., Laughlin, Smith, Page and Merrell, JJ.

In the first case: Judgment and order affirmed, with costs. In the second case: Order .affirmed and judgment reversed, without costs, and judgment directed to be entered for plaintiff for six cents damages.