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RANK v. COLONIAL SAND STONE CO

Supreme Court, Appellate Term, First Department
May 11, 1973
74 Misc. 2d 19 (N.Y. App. Term 1973)

Opinion

May 11, 1973

Appeal from the Civil Court of the City of New York, County of New York, CHARLES S. WHITMAN, J.

Harry Ruderman for appellant.

Darby, Healey, Stonebridge Whelan ( Thomas H. Healey of counsel), for respondent.


The rights of the parties must be determined by Federal law ( Garrett v. Moore-McCormack Co., 317 U.S. 239; Riley v. Agwilines, 296 N.Y. 402). The defendant must sustain the burden of proving that the prior recovery in the seaman's negligence action included the claim for maintenance and cure asserted here ( Bartholomew v. Universe Tankships, 279 F.2d 911, 916 [2d Cir., 1960]). The court below confessed to an inability to decide if the prior verdict included maintenance and cure elements due to a failure of proof and then erroneously dismissed the complaint. "The test to be applied * * * is a simple one: the items of damages specified and included in the instructions to the jury are presumed to be included in the general verdict". ( Bartholomew v. Universe Tankships, supra, pp. 915-916.)

The judgment should be reversed and new trial ordered, with $30 costs to abide the event.

Concur — MARKOWITZ, P.J., QUINN and FRANK, JJ.

Judgment reversed, etc.


Summaries of

RANK v. COLONIAL SAND STONE CO

Supreme Court, Appellate Term, First Department
May 11, 1973
74 Misc. 2d 19 (N.Y. App. Term 1973)
Case details for

RANK v. COLONIAL SAND STONE CO

Case Details

Full title:ILMAR RANK, Appellant, v. COLONIAL SAND STONE CO., INC., Respondent

Court:Supreme Court, Appellate Term, First Department

Date published: May 11, 1973

Citations

74 Misc. 2d 19 (N.Y. App. Term 1973)
343 N.Y.S.2d 709