Opinion
June 23, 1941.
Present — Lazansky, P.J., Hagarty, Johnston, Adel and Close, JJ.
As a result of the explosion of inflammable gas, caused by the negligence of defendants, one Lina Garnsey was severely burned and died. Her administratrix sues to recover damages: (1) for the decedent's injuries, pain and suffering prior to her death, pursuant to sections 119 and 120 of the Decedent Estate Law; and (2) for the death of the decedent, pursuant to section 130 of the Decedent Estate Law. The jury rendered a verdict of $10,000 on the first cause of action and $423.65 on the second cause of action. Defendants appealed from the judgment but subsequently paid $423.65 in partial satisfaction of the judgment. Defendants' sole contention is that the verdict of $10,000 for the decedent's injuries, pain and suffering prior to her death is excessive. Judgment, in so far as it relates to the first cause of action (personal injuries, pain and suffering), reversed on the facts and a new trial granted as to that cause of action, with costs to abide the event, unless within ten days from the entry of the order hereon plaintiff stipulate to reduce to $5,000 the amount of the verdict in her favor on the first cause of action; in which event the judgment, as so reduced, is affirmed, without costs. It is admitted that the decedent lapsed into unconsciousness two hours after the accident, and died without regaining consciousness. In our opinion the verdict of $10,000 for the decedent's injuries, pain and suffering is excessive. Lazansky, P.J., Johnston and Adel, JJ., concur; Hagarty and Close, JJ., dissent and vote to affirm the judgment as to the first cause of action on the ground that the question as to the amount to be awarded for decedent's injuries, pain and suffering is peculiarly one to be determined by the jury. In so far as the judgment relates to the second cause of action (wrongful death), it is unanimously affirmed, without costs. No opinion. Appeal from order dismissed, without costs. There is no order in the record.