Opinion
April 24, 1951.
Appeal from Supreme Court, Bronx County.
Order affirmed, with $20 costs and disbursements to the respondent.
I dissent and vote to reverse the order denying a preference and to grant the plaintiff's motion for that relief.
The plaintiff is over seventy-two years of age and his wife is seventy years old. On October 3, 1950, he met with an accident in the apartment house in which he lived in consequence of which he sustained a fracture of the right femur. He was taken by ambulance to Morrisania Hospital and was there confined up to November 12, 1950. While plaintiff was in the hospital, an operation was performed requiring the insertion of a metal pin in his hip. Because of his advanced age, he could not be placed in a cast. The affidavit of his physician shows that he examined the plaintiff at his home on November 16, 1950, found him to be on crutches and that he was "totally and completely disabled" and "extremely feeble." The doctor also states, under oath, that the injury is permanent, that plaintiff will be disabled for an indefinite period of his time "and that due to his age and the effects of the original fracture it is extremely likely that he may not survive the two years that may be necessary to wait for his trial to be reached."
The affidavits indicate that the hospital bill has not been paid; that neither the plaintiff nor his wife has a bank account; that there is no insurance of any kind except a $500 policy on the life of the plaintiff to cover burial expenses.
Husband and wife receive social security benefits amounting to $35 a month and $19 a month respectively. Their total income thus is $54 a month, out of which they pay $34 rent exclusive of gas and electricity. Occasionally various members of the family help to contribute to their support.
This clearly is a case for the granting of a preference on the ground of old age, the poverty of the plaintiff and his wife, the seriousness and permanency of the injury received, and the likelihood that the plaintiff, in view of his condition, may not survive until the action is reached in the regular course for trial.
Dore, J.P., Cohn and Callahan concur in decision; Shientag, J., dissents and votes to reverse in an opinion in which Van Voorhis, J., concurs.
Order affirmed, with $20 costs and disbursements to the respondent. No opinion.