Opinion
September 23, 1965
Appeal from the Herkimer Trial Term.
Present — Williams, P.J., Bastow, Goldman, Henry and Del Vecchio, JJ.
Judgment unanimously reversed on the facts and a new trial granted, with costs to the appellant to abide the event, unless the plaintiff shall, within 10 days, stipulate to reduce the verdict to the sum of $4,500, as of the date of the rendition thereof, in which event the judgment is modified accordingly and, as so modified, is affirmed, without costs of this appeal to either party. Memorandum: The verdict in favor of plaintiff in the sum of $8,000 was excessive. Furthermore, the court committed serious error when it refused to receive in evidence the notes of the nurses contained in the hospital records and made in the regular course of business. The primary purpose of CPLR 4518 is to permit the admission of a record made in the regular course of business, without having to call as a witness every person who had made the record. The hospital records show that plaintiff was admitted at 7:30 P.M. on November 10, 1960 and was discharged at 1:00 P.M. on November 12, 1960. The notes made by the nurses who observed the plaintiff during that period show among other things that plaintiff slept comfortably both nights, was up and about and that he made no complaints to them. In view of the court's ruling, the jury did not have the benefit of this evidence which was clearly admissible. (See 5 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 4518.12.)