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LORRAINE L. RYAN v. NICHOLAS SAMARCO ET AL. (06/27/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


June 27, 1968

LORRAINE L. RYAN, AS ADMINISTRATRIX OF THE ESTATE OF JOHN J. RYAN, DECEASED, RESPONDENT-APPELLANT,
v.
NICHOLAS SAMARCO ET AL., APPELLANTS-RESPONDENTS

Appeal from amended judgment of Oneida Trial Term in action for damages for wrongful death; also appeal from order granting motion to amend judgment.

Bastow, P. J., Del Vecchio, Marsh, Witmer and Henry, JJ.

Memorandum: Appellants contend that much speculative evidence was received upon the issue of the future earning power of plaintiff's intestate. We do not pass on this contention as the proof was received without objection by defendants' experienced trial counsel. The exception taken to the charge relating to this subject was a futile gesture inasmuch as the proof, as stated, had been previously received without objection. We conclude, however, that the amount of the verdict was excessive and in the exercise of a proper discretion reduce it to the sum of $200,000.

Disposition

 Amended judgment unanimously reversed on the law and facts and a new trial granted, with costs to appellants-respondents to abide the event, unless the plaintiff shall within 10 days stipulate to reduce the verdict to the sum of $200,000, as of the date of the rendition thereof, in which event the judgment is modified accordingly, and as so modified is affirmed, with costs to plaintiff. Order entered November 9, 1967 unanimously affirmed, without costs.

19680627

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