Paley v. Brust

• Decision Date: 09 June 1964
• Citation: 21 A.D.2d 758,250 N.Y.S.2d 356
• Parties: Ceil PALEY, Plaintiff-Respondent, v. William BRUST, Raymond Nutini and Lejac Transportation Company, Inc., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 356

250 N.Y.S.2d 356

21 A.D.2d 758

Ceil PALEY, Plaintiff-Respondent, v. William BRUST, Raymond Nutini and Lejac Transportation

Company, Inc., Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

June 9, 1964.

E. J. Morris, New York City, for plaintiff-respondent.

H. M. Harkavy, J. M. Furey, New York City, for defendants-appellants.

Before BREITEL, J. P., and McNALLY, STEVENS, EAGER and STEUER, JJ.

PER CURIAM.

Judgment, unanimously reversed on the law and on the facts, and a new trial ordered, with costs to defendants-appellants, unless plaintiff-respondent, within ten days after service of order hereon with notice of entry, stipulates to accept $25,000 in lieu of the award by verdict, in which event the judgment is modified to that extent and, as thus modified, affirmed, with costs to defendants-appellants. The verdict for the plaintiff against all defendants, except as to the amount thereof, is amply supported by the record. The gross excessiveness in the amount of the verdict at the hands of the jury was probably due, at least in part, to the trial tactics of plaintiff's counsel in putting to witnesses objectionable questions which were improperly suggestive of extraneous and irrelevant matters. Particularly, it was improper for counsel to use the means of the questioning of a doctor to instill in the minds of the jurors the suggestion that plaintiff's alleged pain and suffering could be compensated on a unit-of-time basis. Decidedly unfair and prejudicial, was the question, 'So that we now have some measure of the value of pain, $45.00 to save her a half hour of pain, is that right Doctor?', followed by the question, 'You doctors, aside from what is charged for the period of anaesthesia, have no other dollar value in measuring pain, do you doctor?' 'The improper matter cast upon the [plaintiff] the burden of showing that it did not influence the verdict rendered. (Manigold v. Black Riv. Traction Co., 81 App.Div. 381, 385, 80 N.Y.S. 861, 863.) Where counsel propounds a question which he must be assumed to know cannot be properly answered, the error is not cured by the Trial Judge's ruling sustaining an objection thereto. (Cosselmon v. Dunfee, 172 N.Y. 507, 65 N.E. 494)' (Swanson v. Evans Oil Co. Inc., 12 A.D.2d 875, 209 N.Y.S.2d 860.) The measure of recovery for pain and suffering is reasonable compensation to be fixed by the trier of the facts in light of all the evidence in the particular case. The nature and...