Opinion
December 10, 1970
Appeal from the Monroe Trial Term.
Present — Goldman, P.J., Marsh, Gabrielli and Moule, JJ.
Judgment unanimously affirmed, without costs. Memorandum: Without passing on the admissibility of that part of the coroner's report which contained hearsay information obtained by him from other persons (cf. Greenberg v. Prudential Ins. Co. of Amer., 266 App. Div. 685; Welz v. Commercial Travelers Mut. Acc. Assn. of Amer., 266 App. Div. 668), we conclude that if this was error it was harmless and a new trial is not required. ( Zweben v. Coral Reef Beach Club, 19 N.Y.2d 799.) The record fully negates the contention that the defendant hospital permitted decedent to wear a silk nightgown when she was placed in the oxygen tent, and that a spark of static electricity caused the fire which resulted in her death. The head nurse, a practical nurse and decedent's own doctor all testified that she wore a hospital gown, and the hospital records showed that after her death, a silk nightgown was returned to her daughter. Charred matches were found in the oxygen tent, and the occupant of decedent's room heard her open her drawer and then her purse shortly before the fire. Decedent was alert and in control of her faculties and had been warned on several occasions of the danger of smoking in the oxygen tent. All cigarettes and matches were removed from the decedent's nightstand. Defendant had no duty to search decedent's purse for cigarettes and matches. Consequently, in view of the strong evidence against the plaintiff, there is no prejudicial error requiring a new trial. As stated in People v. Kingston ( 8 N.Y.2d 384, 387), "Errors are almost inevitable in any trial, improprieties almost unavoidable, but the presence of one or the other furnishes no automatic signal for reversal and retrial." A party is entitled to a fair trial but not a perfect one. ( Lutwak v. United States, 344 U.S. 604, 619.)