
    Warren Palmer, as Administrator de Bonis Non, etc., of Jeannette H. Palmer, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
    Second Department,
    November 15, 1912.
    Negligence — action by father for death of daughter — damages — repayment of tuition — funeral expenses instructions. > ’ •• '■
    In an action by a father, who died three years-and two months, after his, daughter, to recover damages for her death by defendant’s negligence, it appeared that the daughter, educated at a public school,' had passed her majority, studied the millinery trade and, save fór thrée "Months employed elsewhere, had made her home with her father,-: whom'she-hail aided about his store and house, and to whom she had rpp^d,fifty :plpl-. lars of whatever money he had expended for her education. At the time of her death she held a position as a milliner at eighteen dollars per week, but intended to spend five or six months of eách year at home. ' - • i - >
    
      Held, that a verdict for $950 damages was not excessive and an additional sum was properly allowed for funeral expenses paid by the father.
    The court did not err in refusing to charge that the jury could make nc, allowance for any sum the decedent would have paid her father on account of tuition. " ■1' 1"1 • ■' ■
    Appeal by the defendant, The New York Central and . Hudson River Railroad Company, from a judgment of the Supreme Court in .favor of the plaintiff, entered in the office of the clerk .of the county of Rockland on the 17th day of May, 1912, upon the verdict of a jury for $1,194, and also from an order entered in said clerk’s office on the 8th day of June, 1912, denying the, defendant’s motion for a new trial made upon the minutes.
    
      Mortimer B. Patterson, for the appellant.
    
      George A. Blauvelt [Joseph A. Warren with him on the brief], for the respondent.
   Thomas, J.:

A father brought this action to recover damages for the death of his daughter by.the defendant’s negligence, and died three years and two months after his daughter. The question is whether nine hundred and fifty dollars damages for her death are excessive, whether the additional sum found for funeral expenses paid by the father is recoverable, and whether the court erred in the charge. The daughter, educated at a public school, had passed her majority, studied the millinery trade and, save for three months- employed elsewhere, had made her home with her father, whom she had aided about his store and house, and to whom she had repaid fifty dollars of whatever money he had expended for her education. At the time of her death she held a position as a milliner at eighteen dollars per week, hut had for several weeks been home on a vacation, and her intention to spend five or six months of each year at home appears. The period of thirty-eight months, had she lived, would have found her at home in each year for the time stated, assisting as described, and the remaining time at her place of business, earning money to make further repayment towards her education, and for the whole time the jury have found an average pecuniary loss to him of twenty-five dollars per month. Had she remained at home during the entire time, that sum would approximate the moderate .wages of a house servant, and considering her ability to aid him in his drug store and her repayment for her education, we do not deem the finding so palpably excessive as to require reduction. In this class of cases mathematical calculation of income and outgo and a balance of profit shown has not been enforced, and. cannot be in the nature of the case.. In Houghkirk v. President, etc., D. & H. C. Co. (92 N. Y. 219) it was said of the statute then in force: “Becognizing the generally prospective and indefinite character of those damages, and the impossibility of a basis for accurate estimate, it allows a jury to give what they shall deem a just compensation, and limits their judgment to a sum not exceeding $5,000. (Tilley v. Hudson Riv. R. R. Co., 29 N. Y. 252.) But within that range the jury is neither omnipotent, nor left wholly to conjecture. They are required to judge, and not merely to guess, and, therefore, such basis for their judgment as the facts naturally capable of proof can give should always be present, and is rarely, if éver, absent. The pecuniary loss in any such case may he composed of very different elements. It may consist of special damages, that is of an actual, definite loss, capable of proof, and of. measurement with approximate accuracy; and also of prospective and general damages, incapable of precise and accurate estimate because of the contingencies of the unknown future.” In the case at bar the time of the father’s loss is accurately measured, and the daughter’s probable service at home and abroad fairly appears. In what variety of work she would have aided her father at home is described, and what she would have earned at her trade, and that she still owed him for her education and had a purpose to pay him is clear, although the amount is not stated. But it was before the jury that it was for her education. In view of these facts, it cannot be decided that the jury have gone beyond that judgment which is usable by them, although the limit of their function seems nearly reached. The father paid the funeral expenses of his dead child, who left no estate. It is urged by the appellant that he was not legally bound to do so, and that he cannot recover therefor. The next fact to the death was the burial. It was a deed necessitated by the defendant’s negligent act. The burial must be at public or private expense, and if at private expense the burden by every consideration falls upon the parent able to sustain it. It is urged that the father was not legally bound to bury his daughter, who spent half the year in his service without wages. The child was yet a member of the family, not yet wholly emancipated, giving as a child to the parent, and when death came the father did what he would do to a minor child, gave it burial. I do not deem that the test is altogether whether the father could be compelled to bury his daughter, or to reimburse whoever did it. His relation to the child compelled it; his failure would have been abhorrent to his sense of duty and to parental affection, and would have invited and received the contempt of all knowing of it. When a wrongdoer kills a daughter just past her twenty-first birthday, and still related to her father’s family as a serving member of it, the father may treat the child as if it were yet a minor, and suitably bury it and recover the reasonable expenses of it. The court did not err in refusing to charge that the jury could make no allowance for any sum the decedent would have paid her father on account of tuition. There was still a sum due and she had agreed to pay it. The amount does not appear, but the jury could not be directed to make no allowance, however slight. The judgment and order should be affirmed, with costs.

Present—Jenks,'-P. J., Hirschberg, Thomas, Carr and Woodward, JJ.

Judgment and order unanimously affirmed, with costs.  