
    AINSWORTH, Respondent, v. NEW YORK CENT. & H. R. R. CO., Appellant.
    (Supreme Court, Appellate Division, Third Department.
    March 4, 1914.)
    Appeal from Trial Term, Albany County. Action by Effie M. Ainsworth, as administratrix of William I. Ainsworth, deceased, against the New York Central & Hudson River Railroad Company. From a judgment on an assessment of damages in favor of plaintiff for $20,345.50, and from an order denying a motion to set aside the award and assessment of damages and for a new assessment of damages, defendant appeals. Reversed, and new trial granted, unless plaintiff stipulates to reduce the recovery.
    See, also, 151 App. Div. 332, 135 N. Y. Supp. 474.
    Visscher, Whalen & Austin, of Albany (William L. Visscher, of Albany, of counsel), for appellant.
    Richard O. Bassett and Thomas Francis Woods, both of Albany, for respondent.
   PER CURIAM.

Judgment and order reversed, and new trial granted, with costs- to appellant to abide event, .unless the plaintiff stipulates to reduce the verdict to $12,000, and if she so stipulates the judgment is modified, and, as so modified, judgment and order affirmed, without costs.

WOODWARD, J.

(dissenting). Í vote to affirm this judgment, and expressly dissent from that part of the decision which provides for a reduction of the amount of the recovery. In my judgment, this is not a case calling for any such action by this court. The plaintiff’s intestate was a man 42 years of age, intelligent, fairly well educated, sober, and industrious, a respected member of society. He was actually earning at the time of his death $1,200 per annum, and had all the chances of a good American citizen to increase this amount indefinitely. He left a widow and two young children, the latter of the ages of 12 and 7 years, respectively. The breadwinner of this family is dead by the negligent act of the defendant. The actual financial loss possibly largely- exceeds the recovery, and the loss to these children of the companionship, advice, counsel, and guidance of a good father is difficult to overestimate. A jury of 12 men has fixed what I regard as a reasonable sum. The litigation has been protracted and expensive, and I do not think the alternative should be forced upon the plaintiff of accepting a reduction or the burden of a new trial.

HOWARD, J., concurs.  