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Martin Josephson, as Administrator of the Estate of Barbara Josephson v. Gerard D. Wibrew, and Gerson Frydman
In our opinion, the verdicts rendered by the jury for the damages for the death and for the pain and suffering were excessive. It is also our opinion that it was error to admit in evidence the photograph, but that the error may be disregarded pursuant to section 106 of the Civil Practice Act.
The verdict with respect to the cause of action for conscious pain and suffering was erroneous in form but not as a matter of substance, and 534 may be corrected without the necessity of a new trial (Polsey v. Waldorf-Astoria, 216 App. Div. 86; Kinsey v. Spencer & Son Corp., 165 Misc. 143, affd. 255 App. Div. 995, affd. 281 N. Y. 601; Farber v. Demino, 254 N. Y. 363). In any event, the error becomes immaterial, in view of our determination with respect to the amount of such verdict.
Nolan, P. J., Beldock, Kleinfeld, Christ and Pette, JJ., concur.