Lieberman v. Third Avenue Railroad

25 Misc. 296, 54 N.Y.S. 574

• Court: City of New York Municipal Court
• Decided: November 15, 1898
• Status: Published

Opinion

Fitzsimons, Ch. J.

Yre think that the judgment was justified by the evidence herein. It shows that the injuries complained of were caused by the negligence of the defendant, and that he was free from contributory negligence.

We think that no error was committed by the trial justice in the admission or exclusion of evidence.

We do not agree with the defendant that an error was committed by the justice in charging the jury, that plaintiff, an infant, had the right to recover in this action the wages lost hy him, because •of the injuries in question.

We think that the charge in that regard is right, because the infant who was over twenty years of age, had the right at the time of the injuries to his own earnings, if his father consented.

In this instance it is apparent that such consent was given be-, ■cause in his petition for the appointment of his father as his guardian herein, the plaintiff claims as an item of his damages herein, his wages, and his parent in consenting to act as such guardian must be held to have acquiesced in the claim made by his son, and consequently could not recover in any action brought by him, such wages.

The judgment must be affirmed, with costs.

Conlan, J., concurs.

Judgment affirmed, with costs.