Opinion
December, 1905.
Plaintiff's intestate and one Connor were killed on March 7, 1900, by the fall of a bundle of iron pipes from an elevator in a building owned and occupied by the appellants, comprising the firm of Koch Co. Walsh and Connor were truckmen and had been engaged in unloading the pipes from a truck on the street. At the time of the accident they were standing upon the sidewalk. The pipes fell through a window of the elevator shaft striking and killing both men. The litigation growing out of this occurrence is reported as follows: Connor v. Koch ( 63 App. Div. 257); Connor v. General Fire Extinguisher Co. (73 id. 624; affd., 174 N.Y. 515); Connor v. Koch ( 89 App. Div. 33); Walsh v. Riesenberg (94 id. 466). The facts have been so fully stated in those cases that it would serve no useful purpose to repeat them here. In the case in 89 Appellate Division this court unanimously affirmed a judgment in favor of the administratrix of Connor and against these appellants entered upon the verdict of a jury for $10,000. The evidence showed that Connor was twenty years and six months old at the time of his death and that his wages were $10.50 per week. In the case at bar the jury returned a verdict of $15,000. The intestate was thirty-two years of age and was earning $12 per week. We have carefully considered the record in this case and have reached the conclusion that plaintiff was entitled to a verdict, and that no reversible error was committed; but we think that the amount of the verdict was excessive and unwarranted. The judgment and order will, therefore, be reversed and a new trial granted, with costs to abide the event, unless the plaintiff will stipulate to reduce the judgment to $7,500 and the costs and disbursements in the court below with interest thereon from March 7, 1900, to the date of the entry of judgment, and in that event judgment and order affirmed, without costs to either party in this court. O'Brien, P.J., Ingraham, McLaughlin and Houghton, JJ., concurred. Judgment reversed and new trial granted, with costs to appellant to abide event, unless stipulation be given as stated in opinion, in which event judgment as so modified and order affirmed, without costs.