From Casetext: Smarter Legal Research

Kronenbitter v. Washburn Wire Co.

Supreme Court, Special Term, Bronx County
Feb 13, 1957
5 Misc. 2d 961 (N.Y. Sup. Ct. 1957)

Opinion

February 13, 1957

Abraham Kantor for plaintiff.

Sidney A. Schwartz and Joseph Arthur Cohen for defendants.


It may well be that — in these enlightened times of legal equality between the sexes, and the recognized matrimonial and biological fact that the plaintiff's loss of an injured spouse's society may be felt as keenly by the plaintiff in a case where the mate is a male as where the spouse is a female — there is "no logic to the contention that a husband may sue for loss of consortium, but a wife may not where the injury caused by the third party is merely the result of negligence." (COLDEN, J., in Passalacqua v. Draper, 199 Misc. 827, 830.) And it seems to be the recent trend in a number of other jurisdictions to acknowledge the anachronism of the earlier view ( Hitaffer v. Argonne Co., 183 F.2d 811, cert. denied 340 U.S. 852; Acuff v. Schmit, 78 N.W.2d 480 [Iowa]: Brown v. Georgia-Tennessee Coaches, 88 Ga. App. 519; cf. McDade v. West, 80 Ga. App. 481). Indeed, I would be inclined to follow that trend were it an open question for this court, notwithstanding that I am aware that in a substantial majority of the States the wife would be denied recovery of damages in such case (see cases cited in 23 A.L.R. 2d 1378, 1385, 1389-1397; and also Seymour v. Union News Co., 217 F.2d 168; Filice v. United States, 217 F.2d 515; Nickel v. Hardware Mut. Cas. Co., 269 Wis. 647).

But Judge COLDEN'S views were not approved by the Appellate Division in his department ( 279 App. Div. 660), and, more definitive, the issue was resolved for this State by the Court of Appeals in Landwehr v. Barbas ( 270 N.Y. 537) and in Don v. Benjamin M. Knapp, Inc. ( 306 N.Y. 675). In the circumstances, if change of rule there is to be, it must be pronounced for me by the Court of Appeals (cf. Woods v. Lancet, 303 N.Y. 349) or be enacted for me by the Legislature (Sen. Int. No. 908, Pr. No. 937, Kraf, Senator [1957 Sess.]).

This motion by defendant to dismiss the complaint for insufficiency must be, and is, therefore, granted. Settle order directing the entry of judgment accordingly.


Summaries of

Kronenbitter v. Washburn Wire Co.

Supreme Court, Special Term, Bronx County
Feb 13, 1957
5 Misc. 2d 961 (N.Y. Sup. Ct. 1957)
Case details for

Kronenbitter v. Washburn Wire Co.

Case Details

Full title:JOSEPHINE KRONENBITTER, Plaintiff, v. WASHBURN WIRE COMPANY et al.…

Court:Supreme Court, Special Term, Bronx County

Date published: Feb 13, 1957

Citations

5 Misc. 2d 961 (N.Y. Sup. Ct. 1957)
159 N.Y.S.2d 739

Citing Cases

Russell v. Marboro Books

The wife herself is suing for her alleged anguish and humiliation, and the wife herself is suing for the…

People v. Grant

( Schindler v. Royal Ins. Co., 258 N.Y. 310, 314.) Until changed by the highest court of this State or by the…