242 A.D. 843 | N.Y. App. Div. | 1934
Action to recover for “mental anguish and sorrow” sustained by reason of the loss of the body of a still-born baby intrusted to defendant for burial. Appeal from order of Appellate Term affirming judgment in favor of plaintiff. Order of the Appellate Term affirming judgment of the City Court of the City of New York, county of Richmond, and said judgment reversed on the facts and a new trial ordered, costs to appeEant to abide the event, unless within ten days from the entry of the order hereon respondent stipulate that the verdict of the jury be reduced to $500, in which event the judgment as so modified is affirmed, without costs. In our opinion the amount of the verdict, under the circumstances, was excessive. Lazansky, P. J., Young, Carswell and Seudder, JJ., concur; Tompkins, J., votes to reVerse and to dismiss the complaint, with the following memorandum: This case was submitted to the jury on the theory that the defendant was neghgent in losing the still-born ehEd or in being unable to locate its whereabouts in the cemetery. The claim made by the complaint that the defendant faffed to bury the stiE-born child in a particular place specified by the plaintiff was expressly abandoned by the plaintiff on the trial. There is no proof or claim that the body was disturbed after it was buried, except when it was disinterred with plaintiff’s consent and in his presence, and hence there was no trespass or desecration. I think there was no actionable negligenee.