Opinion
February 23, 1960
Judgment unanimously reversed, on the law and on the facts, and in the exercise of discretion, and a new trial ordered, with costs to defendant-appellant, on the ground that the verdict was grossly excessive. Assuming the medical testimony raised a question of fact with regard to the alleged injuries and their causal relation in respect of the occurrence, which was resolved in plaintiff's favor, the record does not support a verdict based on loss of earnings. Plaintiff's evidence of earnings prior to the occurrence was vague, indefinite and illusory. Plaintiff admitted he did not maintain a law office for some years prior to the occurrence. He stated that he was practicing intermittently out of his home and failed to adduce any documentary or record corroboration of his general and vague testimony of annual earnings of a couple of thousand of dollars in the years immediately preceding the occurrence. The necessity of a new trial prompts the observation that testimony of a nontreating medical expert in respect of plaintiff's past history and subjective complaints is inadmissible. ( Davidson v. Cornell, 132 N.Y. 228; Maucere v. Munson, 6 A.D.2d 892; Slacke v. Yellow Taxi Corp., 260 App. Div. 1046; Belter v. Van Winkle, 234 App. Div. 886.) The verdict was so excessive, whether viewed as an evaluation of the alleged injuries or whether there is credible evidence to establish that the alleged injuries were caused by the accident, that the court does not attempt to assess a permissible maximum that could be justified.
Concur — Botein, P.J., Breitel, Rabin, McNally and Stevens, JJ.