There was error in the charge of the court to the jury as to the measure of damages. Davis v. Guarnieri, 45 Ohio St. 471; Gas Co. v. Rogers, 135 S.W. 904; Holton v. Dailey, 106 Ill. 132; May v. R.R. Co., 62 N.J.L. 63; McHugh v. Schlosser, 159 Pa. 480; Nelson v. R.R., 140 Mich. 582; Railroad Co. v. Bentz, 108 Tenn. 670; Railroad Co. v. Johnson, 78 Tex. 536[ 78 Tex. 536]; Railroad Co. v. Walker, 125 S.W. 99; Railroad Co. v. Wilson, 48 F. 57; Railroad Co. v. Altemeier, 60 Ohio St. 10; Railway Co. v. Austin, 68 Ill. 126; Railway Co. v. Golway, 6 App.D.C. 144; Railway Co. v. Townsend, 69 Ark. 380; Steel v. Kurtz, 28 Ohio St. 191; Sternfelds v. Railway Co., 73 A.D. 494; Swift Co., v. Johnson, 138 F. 867; Walker v. R.R. Co., 111 Mich. 518; Webster's Int. Dict. 1895, see "care," "advice." Mr. John B. Daish, with whom Mr. Joseph D. Sullivan was on the brief, for defendant in error.
In three jurisdictions death statutes for the benefit of the widow and next of kin are construed to include the surviving husband as next of kin but not as the statutory equivalent of the widow. Atchison c. Ry Co. v. Townsend, 71 Kan. 524; Steel v. Kurtz, 28 Oh. St. 191; Missouri c Co. v. Canada, 130 Okla. 171. Family allowances and exemptions permitted by statute to be made to the widow and children of the deceased are not construed for the benefit of a widower.
COUNSEL On the point that all of the above testimony was improperly admitted, we cite the following authorities: Little Rock and Ft. Smith Ry. Co. v. Barker , 33 Ark. 350; Steel v. Kurtz, 28 Ohio St. 191; Chicago and B. & Q. R. R. Co. v. Harwood , 80 Ill. 88; Potter v. Chicago and N.W. R. R. Co. , 21 Wis. 373; Blake v. Midland R. R. Co., 10 Eng. L. & Eq. 437; Field on Damages, Sec. 627; Kansas P. Railway Co. v. Cutter, 19 Kan. 83; Green v. H. R. Ry. Co., 31 Barb. 260; Donaldson v. M. & M. Ry. Co., 18 Ia. 290; Penn. R. R. Co. v. Butler, 57 Penn. 337; Brady v. Chicago, 4 Biss. 448; Chicago & N.W. R. R. Co. v. Bayfield , 37 Mich. 205; I. C. R. R. v. Baches , 55 Ill. 379; Penn. R. R. v. Butler, 57 Penn. 335; Sedgwick on Meas. of Dam. 540; Regan v. Chicago, etc., R. R. Co. , 51 Wis. 599; Mansfield Coal Co. v. McEnery, 91 Penn. 185; Penn. Co. v. Roy, 102 U.S. S.C. Rep. 459. TheCourt, against the objections of the defendant, allowed the plaintiff to testify as to what was discovered by her, when Mr. Cook was brought home after the accident, viz: portions
The imposition of sanctions, then, constituted a proper exercise of discretion (see, 22 NYCRR § 130-1.1; Ross Cohen v. Kurtz Steel Corp., 237 A.D.2d 172, 172-173). THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
While the court did not ultimately agree with 1523 M's position in this action, that alone, is not a sufficient basis for the imposition of sanctions. See: Ross & Cohen v. Kurtz Steel Corp., 237 A.D.2d 172 (1st Dept 1997). Conclusion
Litigation can be rough and tumble, often filled with acrimony and harsh accusations which may be ill advised, but not sanctionable. Examining the complaint in the light most favorable to the plaintiff shows that this claim was nothing more than an error of professional judgment which is non-sanctionable (Ross & Cohen v. Kurtz Steel Corp., 237 A.D.2d 172 [1st Dept 1997]).
Litigation can be rough and tumble, often filled with acrimony and harsh accusations which may be ill advised, but not sanctionable. Examining the complaint in the light most favorable to the plaintiff shows that this claim was nothing more than an error of professional judgment which is non-sanctionable (Ross Cohen v. Kurtz Steel Corp., 237 A.D.2d 172 [1st Dept 1997]). Hubshman has also asserted a claim for punitive damages.