Freeman v. Corbin Ave. Bus Co.

• Decision Date: 26 January 1978
• Parties: Eva FREEMAN, etc., of Galloway Freeman, Jr., Deceased, Plaintiff-Appellant, v. CORBIN AVENUE BUS COMPANY et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 224

401 N.Y.S.2d 224

60 A.D.2d 824

Eva FREEMAN, etc., of Galloway Freeman, Jr., Deceased Plaintiff-Appellant, v. CORBIN AVENUE BUS COMPANY et al., Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

Jan. 26, 1978.

J. C. Sable, New York City, for plaintiff-appellant.

S. M. Warner, New York City, for defendants-respondents.

Before MURPHY, P. J., and KUPFERMAN, LUPIANO and SILVERMAN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County, entered May 28, 1976, on a jury verdict in a wrongful death action, awarding plaintiff the sum of $931.50, is unanimously modified, on the law and the facts, to the extent of reversing the judgment so far as it denies any damages for the benefit of the children and a new trial is directed solely on the issue of damages for the benefit of the children only, and otherwise affirmed, unless within 20 days after service upon defendants of a copy of the order entered hereon, with notice of entry, defendants serve and file in the office of the Clerk of the Trial Court a written stipulation consenting to increase the verdict by the sum of $10,000 (to which shall be added interest as directed by EPTL § 5-4.3), for the benefit of the children, and to the entry of an amended judgment in accordance therewith. If defendants so stipulate, the judgment as modified is unanimously affirmed. No costs are awarded.

An earlier trial resulted in a judgment for $130,000 which this Court reversed as excessive, directing a new trial as to damages only, unless plaintiff should stipulate to reduce the verdict to $50,000 (46 A.D.2d 747, 360 N.Y.S.2d 662 (1974)). Plaintiff failed to so stipulate; a new trial was held; and on that new trial, the recovery was only the funeral expenses. Plaintiff appeals from that judgment.

The major error urged by plaintiff on this appeal is the receipt in evidence of various allegedly confidential records of the Department of Social Services (Welfare), Pilgrim State Hospital, the Family Court, a record of conviction of the decedent, and certain probation reports. These records were relevant, as in a wrongful death action the jury is "entitled to know the amount the deceased earned, his habits, the relations existing between the wife and him, and the position he has taken in respect to his obligations to support her." Wilkinson v. Boehm, 231 App.Div. 295, 296, 247 N.Y.S. 343, 345 (3d Dep't 1931). In a wrongful death action, the plaintiff tenders the issue of pecuniary loss sustained by the next of kin. "On that issue any proof as to age, sex, health, intelligence, habits, earning capacity, life expectancy and the like, was competent unless prohibited by statute." Eder v. Cashin, 281 App.Div. 456, 459, 120 N.Y.S.2d 165, 169 (3d Dep't 1953). These records bore on all these issues and were thus relevant. To the extent that some of them may have been privileged, that privilege was waived by the plaintiff bringing this action, thus putting in issue the pecuniary loss suffered by next of kin and thus the evidentiary matter to which we have referred (Eder v. Cashin, supra; Koump v. Smith, 25 N.Y.2d 287, 303 N.Y.S.2d 858, 250 N.E.2d 857 (1969)). These records were all records kept by the respective agencies in the regular course...