Cady v. City of New York
| Decision Date | 02 April 1964 |
| Citation | 249 N.Y.S.2d 868,14 N.Y.2d 660 |
| Parties | , 198 N.E.2d 901 Catherine CADY, as Administratrix of the Goods, Chattels and Credits which were of Paul R. Cady, Deceased, Respondent, v. The CITY OF NEW YORK, Appellant, and Mack Trucks, Inc., Defendant. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, First Department, 19 A.D.2d 822, 243, N.Y.S.2d 661.
Administratrix of estate of deceased fireman, who was fatally injured during fire drill because of allegedly defective equipment, brought action against the City of New York and corporation from which the City purchased the allegedly defective equipment, for conscious pain and suffering and for wrongful death of the fireman. The City pleaded in mitigation of damages that the administratrix, who was the widow of the fireman, was receiving and would receive during her lifetime from pension fund of fire department one-half of the salary of the fireman.
The Supreme Court, Special Term, Bronx County, Hyman Korn, J., entered an order denying the motion of the administratrix to strike from the answer the allegations concerning the pension, and the administratrix appealed.
The Appellate Division reversed the order and granted the motion and held that evidence concerning pension was not admissible in mitigation of damages. The Appellate Division certified the question: 'Was the order of this Court entered October 29, 1963, granting the motion to strike from the answer of the defendant City of New York paragraph numbered Sixteenth E' thereof, as insufficient in law, properly made?'
The City of New York appealed to the Court of Appeals.
Leo A. Larkin, New York City (Seymour B. Quel and Fred Iscol, New York City, of counsel), for defendant-appellant.
Feldman, Kramer, Bam, Nessen & Cowett, New York City (Stephen A. Wareck, New York City, on the brief), for plaintiff-respondent.
Order affirmed, with costs in the following memorandum: For the reasons stated by the Appellate Division (19 A.D.2d 822, 243 N.Y.S.2d 661) we agree that in a wrongful death action brought by a fireman's administratrix against the City, payments received or to be received from the City's Pension Fund may not be applied in mitigation of damages (see Eichel v. New York Central Railroad Co., 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307). Question certified answered in the affirmative.
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