Opinion
January 31, 1983
Appeal from the Supreme Court, Onondaga County, Miller, J.
Present — Dillon, P.J., Simons, Callahan, Boomer and Moule, JJ.
Judgment reversed, without costs, and new trial granted on the issue of damages only. All concur, Simons, J., not participating. Memorandum: In this personal injury action the jury answered the interrogatories submitted to it by finding, among other things, that plaintiff had suffered no lost earnings but that he was entitled to reimbursement for his three-week hospital confinement. On the evidence in the record, these answers were inconsistent. The court dismissed the jury without noting the inconsistency, however, and without giving the jury an opportunity to correct its error. Instead, when the error was called to the court's attention, it directed the addition of $15,200 to the verdict, the amount claimed by plaintiff, to compensate him for his lost salary. In doing so, it erred and the judgment must be reversed and a new trial ordered (see CPLR 4111, subd [c]; and see, generally, 1 N.Y. PJI2d 96 et seq., 1982 Cum Supp, p 29). We accept the jury's findings on liability and apportionment of fault and since we find no merit to the city's other point concerning liability, we direct a new trial on damages only.