Smith v. Foote

228 A.D. 730

Opinion

Per Curiam.

The judgment and order should be reversed because cf error in a ruling on evidence and because the verdict was inadequate. The action is for negligence and was brought to recover damages for the death of a boy, three and one-half years old and in good health. The court ruled that the financial condition of the next of kin was not an element for consideration on the question of damages. Properly proved and under certain conditions, the financial condition of the next of kin may be shown. (Lockwood v. N. Y., L. E. & W. R. R. Co., 98 N. Y., 523, 526; Frank v. Otis, 15 N. Y. St. Repr. 681; affd., 113 N. Y. 654; Fowler v. Buffalo Furnace Co., 41 App. Div. 84, 88; Pressman v. Mooney, 5 id. 121; 17 C. J. 1330.) The verdict was for $208, the stipulated amount of the funeral expenses. Nothing further was allowed for the pecuniary loss caused by the death of the infant. Under the verdict, that loss was limited to the cost of those expenses. Without the erroneous ruling, the verdict might have been larger. Van Kirk, P. J., Hinman, Whitmyer, Hill and Hasbrouck, JJ., concur. Judgment and order reversed on the law and facts and new trial granted, with costs to the appellants to abide the event.