Opinion
May 6, 1963
In an action by a New York City Fire Department lieutenant, who was injured while fighting a fire in a condemned building owned by the defendant city, the city appeals from so much of a judgment of the Supreme Court, Kings County, entered May 7, 1962, upon a jury's verdict after trial, as awarded $40,239.50 to the plaintiff against the city on the second cause of action under section 205-a Gen. Mun. of the General Municipal Law. Judgment, insofar as appealed from, affirmed, with costs. We have not considered the question whether the trial court erred in its instruction to the jury that plaintiff's disability pension was irrelevant on the question of damages. The defendant city states that it has not briefed the point in this court because of our determination in Lehr v. City of New York ( 16 A.D.2d 702, motion for leave to appeal denied 16 A.D.2d 950), and that it has merely mentioned the point in its brief only for the purpose of preserving for the Court of Appeals the issue raised thereby. However, we are constrained to observe that in its answer the city did not plead a partial defense in mitigation of damages based upon plaintiff's receipt of a disability pension. Ughetta, Acting P.J., Kleinfeld, Brennan, Rabin and Hopkins, JJ., concur.