Schramme v. Lewinson

Full title: FREDERICK SCHRAMME, Plaintiff, v . MAXIMILIAN LEWINSON and GEORGE A. JUST…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 10, 1908

123 App. Div. 662 (N.Y. App. Div. 1908)

107 N.Y.S. 1075

Opinion

January 10, 1908.

Lehman Telsey, for the appellant.

William L. O'Brion [ Frank V. Johnson with him on the brief], for the respondents.

WOODWARD, J.:

This action was brought to recover damages for personal injuries claimed to have been sustained by the plaintiff by reason of the alleged negligence of the defendants. The action was tried before a jury and resulted in a verdict in favor of the plaintiff in the sum of $11,000. After the rendition of the verdict the court, at the request of the attorneys for the defendants, set aside the verdict and directed a verdict in favor of the defendants and against the plaintiff, and the jury, in accordance with such direction, then rendered a verdict for the defendants. From the judgment entered on this last verdict the plaintiff appealed. While said appeal was pending, and before it had been brought on for a hearing, the plaintiff died. Thereafter his widow was duly appointed administratrix, and as such seeks to be substituted as plaintiff in the action. From an order denying a motion to make such substitution this appeal is taken.

While the procedure leading up to the appeal in the original action is somewhat complicated by the court having set aside the original verdict and then directed the jury to render a contrary one, yet we feel that the facts bring the case fully within the spirit of the rule laid down in Wood v. Phillips (11 Abb. Pr. [N.S.] 1).

The object of section 764 of the Code of Civil Procedure evidently was to preserve any rights represented in a verdict which would have abated had the death of the party occurred prior to its rendition.

If on the appeal in the main case this court should reverse the action of the trial judge, then we think that as matter of course the verdict originally rendered in behalf of the plaintiff will be reinstated.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted.

JENKS, GAYNOR, RICH and MILLER, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.