Opinion
May, 1899.
Henry A. Robinson (John T. Little, Jr., of counsel), for appellant.
Julius Lehmann (Alexander Rosenthal, of counsel), for respondent.
This is an appeal from a judgment of the General Term of the City Court, affirming a judgment entered upon the verdict of a jury awarding the plaintiff the sum of $650, as damages for a violent and brutal attack made upon him in August, 1896, by an employee of the defendant. The only substantial question involved in the appeal relates to the admission of testimony at the trial as to plaintiff's earnings during the years 1895-1896 and 1897. The case shows that there was evidence as to plaintiff's condition in life, and as to his business, which was that of a commercial traveller, in the wholesale line, and that in consequence of the injuries inflicted upon him he had missed the first fall trip in his business in the year 1896, as a commercial traveller, and that he suffered pain from the injuries received for about one year. Upon the whole a proper foundation was laid for the introduction of evidence as to the earnings referred to, and such evidence was properly admitted under the decision of the Court of Appeals in Ehrgott v. Mayor, 96 N.Y. 264. True, the decision was made with reference to average earnings before the injury, but upon the same principle evidence is admissible as to average earnings for a reasonable subsequent period. Moreover, the evidence as to subsequent average earnings was neither sufficiently objected to, nor did it prejudice the defendant, but was beneficial to it, for it showed that during the last six months of 1897 the plaintiff earned more than he had earned before the injury. The judgment should be affirmed.
MacLEAN, J., concurs; LEVENTRITT, J., taking no part.
Judgment affirmed, with costs to respondent.