Opinion
November 23, 1934.
Appeal from Supreme Court of Steuben County.
George A. King [ James S. Drake, Jr., of counsel], for the appellant.
Walter B. Reynolds [ W. Earle Costello with him on the brief; Cheney Costello of counsel], for the respondent.
While it is true as respondent claims that an opinion cannot be based upon an opinion, we do not think this rule was violated in this case. The decedent unquestionably died of tuberculosis. A medical expert first gave an opinion, based on certain facts, stated in a hypothetical question, that decedent had tuberculosis before the accident. Upon a further question in which it was assumed among other proven facts that the decedent was suffering from tuberculosis at the time of the injury, the expert also gave it as his opinion that decedent died as a result of injuries caused by the accident. This latter opinion does not rest upon the earlier one, but upon the facts upon which the first opinion was itself based. In these circumstances, the expert's opinion that tuberculosis existed at the time of the decedent's receipt of the injuries is but a step in the expert's reasoning, rather than a basis for his ultimate conclusion.
All concur, except THOMPSON, J., who dissents and votes for affirmance. Present — SEARS, P.J., EDGCOMB, THOMPSON, CROSBY and LEWIS, JJ.
Judgment reversed on the law and new trial granted, with costs to the appellant to abide the event.