Opinion
Submitted May 18, 1967
Decided June 1, 1967
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, BENJAMIN BRENNER, J.
Julius S. Christensen for appellant.
Jerome Seidel for respondent.
MEMORANDUM. The record discloses a failure, to an unusual degree, to protect adequately the interests of the five-year-old injured child in the proceedings instituted in July, 1955 by the insurance company to settle her claim. The lawyer who prepared the application was regularly retained as the attorney of record for the insurance company; the two physicians who examined the child were retained by the company and neither made any effort to examine the X rays or other hospital records purporting to demonstrate an underlying fracture of the skull. Neither the hospital records nor the hospital physicians who actually treated the child were before the Municipal Court which approved the settlement. Greater care should have been exercised by the Judge in protecting the infant's interests where it was suggested in the papers that there had been a fractured skull with post-concussion syndrome and $750 had been offered to settle, since she was not represented by counsel. Although the steps taken by the insurance company were technically proper enough, the record suggests that less was done to protect the infant than the fair requirements of the medical proof indicated as necessary.
The order should be affirmed, with costs.
Chief Judge FULD and Judges VAN VOORHIS, BURKE, SCILEPPI, BERGAN, KEATING and BREITEL concur.
Order affirmed.