Opinion
March 5, 1962
In consolidated actions to recover damages for personal injuries, medical expenses and loss of services, on the ground of negligence, the defendants New York Telephone Company and Joseph Marowski, Jr. (in Action No. 1.) appeal, as limited by their briefs, from so much of a judgment of the Supreme Court, Queens County, entered June 2, 1961, after a jury trial, as is in favor of the plaintiff wife Florence Mauro, against them, upon a verdict of $65,000 for her personal injuries, and as is in favor of plaintiff husband Louis Mauro, against them, upon a verdict of $9,000 for medical expenses and for the loss of his wife's services. Judgment insofar as it is in favor of the plaintiff wife reversed on the law and the facts, and as to said plaintiff, the action is severed and a new trial granted, with costs to abide the event, unless, within 20 days after entry of the order hereon, said plaintiff shall stipulate to reduce to $35,000 the amount of the verdict in her favor, in which event the judgment as to her, as so reduced, is affirmed, without costs. Judgment, insofar as it is in favor of plaintiff husband, affirmed, with costs. It was improper to admit evidence of the plaintiff wife's claimed loss of sensation in her left leg and to permit recovery therefor, since no claim of such condition was set forth in her bill of particulars, and since no evidence was adduced at the trial that such loss of sensation necessarily and immediately flows from any of the injuries which were set forth in said bill (cf. Kleiner v. Third Ave. R.R. Co., 162 N.Y. 193; Long v. Fulton Contr. Co., 133 App. Div. 842; Fulford v. Linch, 168 App. Div. 70; Page v. President, etc., Delaware Hudson Canal Co., 76 App. Div. 160; Brett v. Simon, 277 App. Div. 890; Schulz v. Finn, 273 App. Div. 780). Accordingly, as to plaintiff wife a new trial is required, unless, as already indicated, she shall elect to stipulate to reduce the verdict in her favor to $35,000. We deem this sum to be adequate compensation to the wife for the injuries alleged in her bill of particulars and established by competent proof. We also deem the amount awarded by the jury to be excessive in any event, whether the loss of sensation be properly excluded or included in the compensable injuries. Beldock, P.J., Ughetta, Hill, Rabin and Hopkins, JJ., concur.