Opinion
October 19, 1965
Judgment unanimously vacated and a new trial ordered on the law and on the facts, with $50 costs and disbursements to defendant unless plaintiffs stipulate to reduce the verdict to $2,000 and $500, respectively, in which event judgment affirmed, with costs and disbursements to defendant. In this action for personal injuries and loss of services, a reading of the record reveals that plaintiff wife sought to attribute the effects of pre-existing conditions to the accident. While there was technical evidence that the accident was a competent producing cause of her present condition, the determination, reflected in the amount of the verdict, that the accident did in fact cause the condition, is against the weight of the evidence. Should there be a new trial, we believe that this is a case where impartial medical testimony would be particularly helpful. Also, plaintiffs' counsel in summation argued for the so-called "unit-of-time" basis for appraising damages for pain and suffering. We have previously had occasion to consider this practice ( Paley v. Brust, 21 A.D.2d 758) and if the case is retried a repetition of the error will not be overlooked. If a stipulation on the basis alternately provided for is made, we believe the effects of this impropriety will result in no prejudice to defendant. Settle order on notice.
Concur — Breitel, J.P., Valente, McNally, Stevens and Steuer, JJ.