Opinion
April 30, 1962
In an action by the administrator of a deceased policeman who had been in the defendant's employ, to recover damages for his wrongful death, the defendant appeals from so much of an order of the Supreme Court, Queens County, dated August 30, 1961, as granted plaintiff's motion to strike out for insufficiency defendant's partial defense (set forth in paragraph eighth of its answer) in mitigation of damages. Order, insofar as appealed from, affirmed, with $10 costs and disbursements. As a partial defense, defendant pleaded that one of the intestate's dependents has received and is receiving a pension from the Police Pension Fund; that another one of his dependents has received the contributions made by him (the intestate) to the Pension Fund; and that these payments should be considered in mitigation of damages. In our opinion, the payments sought to be offset are from a collateral source; hence, they may not be taken into consideration in determining the amount of damages in this action for the intestate's wrongful death ( Jennings v. United States, 291 F.2d 880; United States v. Price, 288 F.2d 448). Beldock, P.J., Ughetta, Kleinfeld, Brennan and Hill, JJ., concur.