Opinion
Argued March 26, 1964
Decided April 2, 1964
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, HYMAN KORN, J.
Leo A. Larkin, Corporation Counsel ( Fred Iscol and Seymour B. Quel of counsel), for appellant.
Robert Polstein and Stephen A. Wareck for respondent.
Order affirmed, with costs, in the following memorandum: For the reasons stated by the Appellate Division ( 19 A.D.2d 822) we agree that, in a wrongful death action brought by a fireman's administratrix against the city, payments received or to be received from the City's Pension Fund may not be applied in mitigation of damages (see Eichel v. New York Cent. R.R. Co., 375 U.S. 253). Question certified answered in the affirmative.
Concur: Chief Judge DESMOND and Judges DYE, VAN VOORHIS, BURKE, SCILEPPI and BERGAN. Taking no part: Judge FULD.