
    Bridget Connor, as Administratrix, etc., of Timothy Connor, Deceased, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.
    
      Negligence — inadequate verdict.
    
    In an action to recover damages for pecuniary injuries sustained by the next of kin of a workman, who, while driving through a city street, was thrown from his cart and fatally injured by reason of a hole in the street, it appeared that the deceased was a laboring man earning two dollars a day; was in good health ■ prior to the accident and was charged with the support of a wife aud four children, the oldest eleven and the youngest six years of age, who survived him.
    
      held, that the trial court was justified in setting' aside as inadequate a verdict in favor of the plaintiff for §1,000.
    Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from an order of the Supreme Court, made at the New Yofk.'Trial Term and entered in the office of the clerk of the county of New York on the 15th day of October, 1897, granting the plaintiff’s motion for a new trial made upon the ground that the verdict of $1,000 in favor of the plaintiff was insufficient' and inadequate.
    
      Theodore Connoly, for the appellant.
    
      Louis Steckler, for the respondent.
   Ingraham, J.:

The action was brought to recover the damages sustained by the next of kin of Timothy Connor, deceased, in consequence of- his death. The case came on for trial before a jury, and the plaintiff - gave evidence tending to show that the defendant, a workman driving a cart through Gouverneur street, was thrown off his cart by reason of a hole in the crosswalk of the street two feet square and between five and six inches deep. The left wheel of the cart ran into this hole. There was evidence, tending to show that this condition of -the street had existed for four or five months. Connor left him surviving a widow and four children, the oldest eleven and the youngest six years of age. The ease was submitted to the jury, who found a •verdict for the plaintiff for $1,000. The learned trial judge set aside the verdict upon the ground that it was inadequate, and from that order the defendant appeals.

The deceased was a laboring man earning two dollars per day, charged with the support of his wife and children, and his death made it impossible for him to perform this duty. He was in good health prior to the accident, and we agree with the court below that if the defendant was liable at all, the damages sustained by the widow and these four children, who will need many years of support before they will be competent to take care of themselves, exceeded the sum awarded by the jury.

. W e are never disposed to interfere with the discretion of the trial court in granting a new trial, unless it appears that that decision is based upon an erroneous determination of a legal question or principle, or upon some misunderstanding of the effect of the evidence. Here it is quite clear that the death of the husband and father of a family of this character, thé person upon whom rests the burden of supporting the family, will not by any means be compensated by the amount of this verdict. Assuming that the widow and children had other means of support, the duty nevertheless was upon -the husband and father to support the family. . We think, therefore, that under the circumstances the trial judge did not commit legal error in his determination that the amount awarded by the jury was inadequate; and the order appealed from is affirmed, with costs.

Rumsey and Patterson, JJ., concurred; Van Brunt, P. J., and McLaughlin, J., dissented.

McLaughlin, J. (dissenting):

I think the order appealed from should be reversed. The damages which the plaintiff was entitled to recover under the statute, by reason of the death of. her intestate, were such a sum as the jury deemed a “ fair and just compensation for the pecuniary injuries resulting from the decedent’s death.” The jury after considering all the evidence awarded her $1,000, and this conclusion ought not to have been interfered with, unless it appeared that the verdict was the result of passion, prejudice, corruption or mistake. A verdict of $1,000, under- the evidence set forth in this record, cannot of itself (and there is nothing 'else suggested) he said to have been brought about by either one of these influences. The pecuniary injuries sustained by the widow and the infant children of the deceased were, from the very nature of the case, indefinite, prospective and contingent, and could not be proved with any degree of accuracy, for the reason that the deceased might have died, failed in health or abandoned his family. Because of the difficulty and uncertainty in fixing the damages in actions like this, the courts have refused, except in rare instances, to interfere with the verdict of the jury. Whatever may be said of the verdict in this case, the real question is, and it was the question presented to the trial court, can this court say, as a matter of law, that the jury violated any recognized rule governing their deliberations and determinations, because .they did not award this plaintiff a larger sum than they did? I think not. The case of Reger v. The Rochester R. Company (2 App. Div. 5) is directly in point. In that case action was brought to recover damages resulting from the death of plaintiff’s daughter. The ju2'y rendered a verdict of $375, which'the tidal court set aside, as here, on the sole ground that the verdict was inadequate, but on appeal the order was unanimously reversed. I think this order should be reversed.

For these reasons I cannot concur in the opinion of Mr. Justice Ingraham.

Order affirmed, with costs.  