Opinion
October 19, 1961
Judgment unanimously modified on the law, on the facts and in the exercise of discretion to the extent of reversing the judgment in favor of the plaintiff-respondent-appellant as against the defendant-appellant Engelsher, on the ground of excessiveness of the verdict and ordering a new trial as to said defendant on both causes of action unless the plaintiff stipulates to reduce the verdict against said defendant Engelsher, to the amount of $10,000 with interest from the date of verdict on the cause of action for conscious pain and suffering and to the amount of $10,350 with interest from the date of death on the wrongful death cause of action, in which event the judgment as it affects the defendant Engelsher, as so modified, is affirmed, with costs to defendant-appellant Engelsher against the plaintiff-respondent. The judgment is also modified to the extent of increasing the amount of the verdict entered against the defendant-appellant-respondent Kurie on the cause of action for conscious pain and suffering to the sum of $10,000, with interest from the date of verdict, said modification to take effect only if the plaintiff-respondent stipulates to the reduction of the verdict against defendant Engelsher and in the absence of such stipulation the new trial directed shall proceed as against the defendant Kurie, only with respect to the cause of action for conscious pain and suffering, and the judgment as against defendant Kurie, as so modified, is affirmed, with costs to the plaintiff-respondent against defendant Kurie. The defendants may not be held liable for all the pain and suffering endured by the decedent — but only for that portion attributable to their negligence. On this record we find the sum of $20,000 for the pain and suffering to be excessive and the sum of $10,000 to be the maximum warranted for the pain and suffering attributable to the negligence of the defendants. The damages awarded for the wrongful death are likewise excessive in view of the decedent's poor physical condition prior to his last illness and his apparent lack of earning potential. It was improper for the jury to render a verdict against Kurie on the pain and suffering cause of action in an amount different than that rendered against Engelsher on the same cause. Under the facts, the liabilities of Engelsher and Kurie with respect to that cause of action were coextensive and the amounts awarded against them should not be unequal. It is apparent that the jury fixed the value of the total pain and suffering at the amount awarded against the defendant, Engelsher. In the circumstances of this case this court has the power to raise the award against the defendant, Kurie, to a like amount ( Goines v. Pennsylvania R.R. Co., 3 A.D.2d 307; Kinsey v. Spencer Son Corp., 165 Misc. 143, affd. 255 App. Div. 995, affd. 281 N.Y. 601). Accordingly, we increase the amount of the verdict against defendant Kurie to $10,000. Settle order on notice. Appeal from order entered on January 26, 1960 unanimously dismissed, having become academic by virtue of the decision of this court decided simultaneously herein. No opinion.
Concur — Rabin, J.P., Valente, McNally, Stevens and Steuer, JJ.