Opinion
July 10, 1967
In a consolidated action to recover damages for alleged wrongful deaths and personal injuries sustained because of the defendants' negligence, the defendant, The Long Island Rail Road Company, appeals from a consolidated judgment of the Supreme Court, Suffolk County, entered March 31, 1966, in which it was adjudged that specified parties in this consolidated action recover of said defendant $98,343.31, including interest, costs and disbursements. Judgment modified on the law by reducing, in the sixth subdivision of the second decretal paragraph, the amount of the recovery on the cause of action for loss of services and funeral expenses from $10,408 to $408, and adjusting the interest item accordingly. As so modified, judgment, other than that provided for in the fifth subdivision of the second decretal paragraph, affirmed, without costs. Judgment, as provided for on the cause of action for wrongful death, as between plaintiff, Thomas C. Burger, as administrator of the estate of William Burger, deceased, and appellant, reversed on the facts, action severed, and new trial granted, solely on the issue of damages, with costs to abide the event, unless, within 30 days after entry of the order hereon, said plaintiff shall serve and file a written stipulation consenting to reduce the amount of the verdict in his favor, as provided for in the fifth subdivision of the second decretal paragraph, from $25,000 to $15,000 and to adjust the interest item accordingly and to the entry of an amended judgment accordingly, in which event the judgment, as so reduced and amended, is affirmed, without costs. [See CPLR 4404, subd. (a); Mercado v. City of New York, 25 A.D.2d 75.] Thomas C. Burger, as administrator of the estate of William Burger, deceased, alleged one cause of action for wrongful death and one cause of action to recover $408 expenses he was obliged to incur for "medical, hospital and funeral expenses and this action is brought on his behalf". A form listing the possible verdicts was given to the jury for its guidance. On the list of possible verdicts was included a cause of action "for funeral expenses and loss of services". On this cause of action the jury returned a verdict in the administrator's favor for $10,408. In our opinion this was error. No cause of action lies in the administrator for loss of services on his own behalf. There must be a reduction in the award in the cause of action for wrongful death brought by the administrator on behalf of the next of kin for pecuniary loss. The record is barren of any testimony of the elements of pecuniary loss on which the jury could bottom a verdict of $25,000, except the mere fact of death of a 10-year-old boy. In our opinion, to the extent that this part of the verdict was for more than $15,000, it was excessive. Christ, Acting P.J., Rabin, Benjamin, Munder and Nolan, JJ., concur.