
    Barbara Mix, as Administratrix, etc., of Harry Mix, Deceased, Respondent, v. Hamburg-American Steamship Company, Appellant.
    
      Negligence — the cost of an annuity, equal to the annual earnings of a decedent, for his life as determined by the life tables, is not a proper measure of damages in an action to recocer for his death.
    
    In an action to recover damages resulting from the death of the plaintiff’s intestate, which was alleged to have been caused by the negligence of the defendant, it is error to permit the plaintiff to prove, upon the question of damages, the cost of procuring an annuity for the amount of the deceased’s annual earnings payable for the length of time which, according to the life tables, the deceased would have lived had lie not been killed through the defendant’s negligence.
    Appeal by the defendant, the Hamburg-American Steamship Company, from a judgment of the Supreme Court in favor of the plaintiff, entered ■ in the office of the clerk of the county of New York on the 24th day of December, 1902, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 20th day of December, 1902, denying the defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 5th day of December, 1902, denying the defendant’s motion to remove the case from the day calendar, and also from an order bearing date the 7th day of November, 1902, and entered in said clerk’s office denying the defendant’s motion for a stay of proceedings.
    
      Everett P. Wheeler, for the-appellant.
    
      J. Culbert Palmer, for the respondent.
   McLaughlin, J.:

The plaintiff’s husband, Harry Mix, on the 17th of August, 1901, was a pilot on the pilot boat James■ Gordon Bennett, and on that day he lost his life by a collision between such boat and the defendant’s steamer, the Aleñe.- This action was- brought-to recover damages for the- pecuniary injuries sustained by the widow resulting from his death, on the ground that the same was caused solely by the defendant’s negligence. She had a verdict for $12,500 and from the judgment entered thereon, and an order denying a motion. for a new trial, defendant has appealed.

The validity of the judgment is attacked upon several grounds, but after an examination of all the errors alleged we find.only one-which requires consideration. At the conclusion of the trial a question of fact was presented both as to defendant’s negligence and the; intestate’s freedom from negligence, as well as whether the collision. Occurred within the “ three-mile limit.”- The case in-this respect cannot be distinguished from Lennan v. Hamburg-American-Steamship Co. (73 App. Div. 357) or Grube v. Hamburg-American, Packet Go. (83 id. 636).

' At the trial the plaintiff proved that the deceased, at the time of' his death, was a member of the Sandy Hook Pilots’ Association that the amount which he received for services rendered by him as. a pilot depended upon the. earnings of the association; that he had a salary of $200 a month if the business warranted it; if not, less, and in addition to this he was entitled to a certain share in the net profits of the association if there were any; that. during the six years immediately preceding his death his receipts .from the association had averaged $3,000 per year; that he could retire when he reached sixty-five years of age and would then, until his death, be .,/ entitled to a pension from the association of $75 a month. An actuary was then called as an expert, who, after testifying that the expectation of life of a person forty-three years of age, which was the age of the deceased, according to the Northampton tables^ is twenty-one and fifty-four one-hundredths years; . according to the Carlisle tables, twenty-five and seventy-one one-hundredths years," and according to the American Experience tables, twenty-six years, was asked the following question: What would be the present value of $3,000 per annum, payable in equal quarterly installments, based on the chances of a man living from forty-three years to-sixty-five-years of age, and after that calculated at.the rate of $900-per annum to the period which the Annuity Tables show he probably would have lived ? ” This was objected to, the objection overruled, the defendant excepted, and the witness answered, $39,993, or calculating it in another .way, $39,992. The objection to the - question, should have been- sustained, and the exception to the ruling is fatal. to the judgment. This evidence was inadmissible. (Hinsdale v. N. Y., N. H. & H. R. R. Co., 81 App. Div. 617; Fajardo v. N. Y. C. & H. R. R. R. Co., 84 id. 354.)

The damages to which the plaintiff is entitled are those specified in section 1904 of the Code of Civil Procedure, which provides that the damages awarded “ to the plaintiff may be such a sum as the ■jury * * * upon a trial * * * deems to. be a fair and just compensation for the pecuniary injuries resulting from the •decedent’s death to the person or persons for whose benefit the action is brought; ” and the preceding section (1903) provides that the damages recovered are exclusively for the benefit of the decedent’s husband or wife and next of kin. Here, the deceased left him surviving only his widow, and it was competent to lay before the jury the probable duration of his life, his earnings, his habits, what he had theretofore contributed to the widow and the way he had supported and maintained her to the end, that they might estimate her pecuniary loss. This, however, did not permit the plaintiff to prove the present worth of the gross amount the deceased would have earned had he lived the time specified in the tables. This was not a proper basis of a recovery. Such amount is clearly not the ■pecuniary loss sustained by the. widow, it was misleading, and was •not evidence upon which the jury could predicate a proper recovery for the plaintiff.

In the Hinsdale case it was held that evidence of the amount'which it would cost to purchase an annuity equal to the amount of the ■decedent’s income, based upon the' probable duration oi his life had he survived, was incompetent. Mr. Justice Ingraham, delivering the opinion of the court, commenting upon that question, said: “ The statute'imposes upon the jury the burden of determining that question; and to assist them in the performance of that duty, •evidence of the amount that the decedent earned, his habits, the relationship of those dependent upon him, and the view that he has taken of his obligations to those dependent upon him, as evidenced by the contributions that he has made for their support and comfort, are proper elements for the jury to consider in determining what they have lost by his death* The language of the statute, however, precludes an'attempt to measure this loss upon a matlieanatical calculation, and we do not think that evidence of the cost of an annuity should be admitted, as it is calculated to distract the attention of the jury from the real duty that is imposed upon them, by the statute and that is, to fix what they deem a fair' and just ■compensation for- the pecuniary injuries resulting from the decedent’s, .death. The amount that would be required'to "procure for the ■ deceased a certain annuity for his life, free from all the contingencies of the loss of employment or earning power by sickness or other misfortune, has no relation to the benefit that his wife oi-mother would have received had his life been continued " * This case is directly-in point. It was followed and approved in the Fag ardo case and is decisive on this appeal.

The judgment and order appealed .from, therefore, must be •reversed and a new trial ordered, with costs to the appellant to abide, the event. . *

Van Brunt, P. J., Ingraham and Hatch, JJ., concurred.

O'Brien, J.:

I did. not concur in the conclusion reached by this court in .the case of Hinsdale v. N. Y., N. H. & H. R. R. Co. (81 App. Di617), but the majority having made the rule for the court, as that case and the case of Fajardo v. N. Y. C. & H. R. R. R. Co. (84 App. Div. 354) are controlling, I concur.

■ Judgment* and order reversed, new trial ordered, costs to appellant to abide event.  