19 N.Y.S. 492 | N.Y. Sup. Ct. | 1892
The action was to recover under the civil damage act for the loss sustained by the plaintiff in the death of her husband. The cause was pending, at issue, and on the calendar of the Monroe circuit held in March, 1890. Mr. J. A. Stull, the attorney of record for the defendant, being necessarily absent from the circuit, the defendant was represented by Mr. H. J. Thomas as counsel. The cause being reached and moved for trial by counsel for the plaintiff, Mr. Thomas moved to put it over the term, on the ground of Mr. Stull’s absence, and his (Thomas’) ill health and want of preparation to conduct the trial, and the application was granted upon the tender by'Mr. Thomas of a stipulation which was then made in open court. The fact of the stipulation and of the postponement of the trial was entered in the minutes of the clerk, as follows: “[Title of the cause.]. This cause, having been
In March, 1891, the decision of the general term was rendered in the case of Hall v. Germain, 14 N. Y. Supp. 5, affirming the judgment in favor of the plaintiff therein, and at the next circuit thereafter—in June, 1891—this cause was brought to trial, and was tried under the stipulation above mentioned. The trial was thus necessarily in the nature of an assessment of damages. All the questions of fact and law bearing upon the liability of the defendant were held to be determined in favor of the plaintiff, and the only question open to be litigated was the extent of the pecuniary loss sustained by her in the death of her husband. Of this question one important element was the earning capacity of the deceased at a time immediately preceding the intoxication from which his death resulted, and another was the then probable duration of his life; and both were, in large measure, dependent upon his then existing condition of physical health or disease. It was therefore plainly competent for the defendant, even under the restrictions of the stipulation, to give evidence tending to show, not any immediate cause of death other than the intoxication complained of, but any other cause, either of probable incapacity for labor or of probable shortness of life. This rule, we think, was clearly violated by one or more of the rulings of the court. Thus counsel for the defendant offered to show, by two witnesses who were on the stand, that four or five weeks before his death the plaintiff’s husband fell off from a canal bridge, a distance of some 12 feet, striking on the back of his head and shoulders, and that he was taken up unconscious, with blood running from his nose and ears, and that after that time he was unable to do any work, or much of
Order denying the defendant’s motion to set aside the stipulation affirmed. Judgment and order denying motion for a new trial reversed, and a new trial granted, with, costs to abide the event. All concur.