Lavender v. Lavender
| Decision Date | 28 February 1933 |
| Citation | 185 N.E. 744,261 N.Y. 574 |
| Parties | Zada M. LAVENDER, as Administratrix of the Estate of William Lavender, Deceased, Respondent, v. Nettie LAVENDER, an Infant, by Egbert T. Cross, Her Guardian ad Litem, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (236 App. Div. 751, 258 N. Y. S. 976), entered July 12, 1932, affirming a judgment in favor of plaintiff entered upon a verdict, in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of the defendant. The action was one of four actions, all tried together, against the same defendant to recover damages resulting from the overturning of an automobile being operated by defendant. Plaintiff's intestate and the plaintiffs in the other three actions were passengers in the automobile. The plaintiffs in the other three actions were admittedly injured, but notwithstanding the verdict in favor of the plaintiff in the death claim, the jury returned a verdict of no cause of action in the other actions. On plaintiff's motion in each of the other actions, the verdict of no cause of action was set aside by the trial court and a new trial ordered unless the defendant should stipulate for the entry of a verdict in a specified amount in favor of the plaintiff. The defendant refused so to stipulate, and the orders setting aside the verdict of no cause of action were affirmed by the Appellate Division. No appeal to the Court of Appeals has been taken from such affirmances.
The defendant-appellant in the death claim argued that plaintiff's intestate was guilty of contributory negligence, and that her motion for a nonsuit on the ground that she and the deceased were engaged in a joint undertaking should have been granted. She further contended that, the jury having found that no basis existed for the awarding of damages to the living plaintiffs in the other three actions, no foundation existed to support a contradictory or inconsistent verdict by the same jury in the death claim.
D. J. Seubert, of Syracuse, for appellant.
Henry J. Crawford, of Albany, for respondent.
Judgment affirmed, with costs.
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