Lauck v. Metropolitan Street Railway Co.

Freedman, P. J. The action was brought for the recovery of damages for personal injuries alleged to have been sustained by the plaintiff in consequence of defendant’s negligence. The complaint contained no averment showing that the plaintiff was a married woman and that notwithstanding that fact she was, for some reason or other, entitled to the fruits of her labor, or that she was engaged in business on her own account and by reason of her injuries had suffered loss therein. That being so, and it appearing at the trial that she was a married woman, it was error on the part of the trial judge to permit her, against the objection and exception of the defendant, to testify as to her earnings and that her earnings had been impaired .by reason of her injuries. Uransky v. Dry Dock, E. B. & B. R. R. Co., 118 N. Y. 304; Klapper v. Metropolitan St. R. Co., 34 Misc. Rep. 528; Austin v. Bartlett, 67 App. Div. 312. It appears, however, from the testimony of the plaintiff, that her earnings were five dollars per week and that her inability to work continued for four weeks. Upon that testimony and the charge of the trial judge with regard to it the jury could not have awarded to the plaintiff more than twenty dollars on account of it. Unless the plaintiff stipulates to deduct that amount from the amount of the verdict and then to reduce the judgment appealed from to its correspondingly proper amount, the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event. In case the stipulation is given, the judgment as reduced to its proper amount is to be affirmed, without costs, on this appeal. Trhax and Gildersleeve, JJ., concur. [729] Judgment reversed and new trial ordered, with costs to appellant to abide event, unless stipulation is given to reduce judgment. In case stipulation is given, judgment affirmed, without costs.