Williams v. State

284 A.D. 1027, 134 N.Y.S.2d 857, 1954 N.Y. App. Div. LEXIS 4420

Opinion

Judgment affirmed, with costs. All concur, except Piper and Wheeler, JJ., who dissent and vote for reversal and for dismissal of the claim in the following memorandum: We think the finding of the Court of Claims that the State was negligent is contrary to and against the weight of the evidence. Further we find no competent evidence in this record that Kennedy “ by use of force, threats and duress, compelled ” decedent Williams “ to drive and transport said William A. Kennedy in attempting to perfect his escape.” In any event we think that the rule laid down in Mitchell v. Rochester Ry. Co. (151 N. Y. 107), that plaintiff cannot recover for injuries occasioned by fright when there is no physical injury, is applicable here. We do not construe Comstock v. Wilson (257 N. Y. 231) as having changed the rule. On this record the judgment should be reversed and the claim dismissed. (Appeal from a judgment for claimant on a claim against the State for damages for the death of claimant’s testator and for conscious pain and suffering.) Present — McCurn, P. J., Vaughan, Piper, Wheeler and Van Duser, JJ. [204 Misc. 843.]