
    Slaven v. Germain et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    June, 1892.)
    1. Stipulations—Enforcement.
    A stipulation volunteered bv defendant, that, if the cause be continued, the issues, except the question of damages, should abide the result of another case pending, having been made without fraud, deceit, or mistake, and the continuance granted, should be enforced.
    2. Same—Effect—Damages.
    The action being for the death of plaintiff’s husband, though all the issues except that of damages were decided in her favor by the result of the pending case, still, as bearing on the earning capacity of deceased at the time of his death, and the then probable duration of his life, evidence of an injury that he received a short time before, and the extent thereof should have been admitted.
    Appeal from circuit court, Monroe county.
    Action by Hannah Slaven against Edward B. Germain, impleaded, etc., for death of plaintiff’s husband. From a judgment for plaintiff entered on a verdict, and from an order denying defendant’s motion for a new trial on the minutes, also from an order of the special term denying defendant’s motion to set aside a stipulation entered as made at a former circuit as a condition of putting the cause over the term, defendant appeals.
    Affirmed as to stipulation ; reversed as to judgment and new trial.
    Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      J. A. Stull, for appellant. G. P. Decker, for respondent.
   Dwight, P. J.

The action was to recover under the civil damage act for the loss sustained by the plaintiff in the death of her husband. The cause was pending, at issue, and on the calendar of the Monroe circuit held in March, 1890. Mr. J. A. Stull, the attorney of record for the defendant, being necessarily absent from the circuit, the defendant was represented by Mr. H. J. Thomas as counsel. The cause being reached and moved for trial by counsel for the plaintiff, Mr. Thomas moved to put it over the term, on the ground of Mr. Stull’s absence, and his (Thomas’) ill health and want of preparation to conduct the trial, and the application was granted upon the tender by'Mr. Thomas of a stipulation which was then made in open court. The fact of the stipulation and of the postponement of the trial was entered in the minutes of the clerk, as follows: “[Title of the cause.]. This cause, having been moved by the plaintiff’s attorney, was ordered to trial. On stipulation it was ordered over the term, to abide the event oí the case of Anna B. Hall vs. the same defendants, now pending in the general term.” Mr. Justice Adams, who held the circuit, made the following entry in his minutes: “Cause moved to trial, and stipulated by counsel in open court that the issues in this case, except the question of damages, abide the result of the action of Anna B. Hall vs. same defendants, now pending in the general term.” And Mr. Os-goodby, the official stenographer of the court, entered the stipulation, at large, in his minutes, as follows: “[Title of cause.] It was stipulated in open court that the issues in this case, except the question of damages, abide the result of the action of Anna B. Hall against the same defendants, now pending in the general term, and that, in case that action should result in favor of the plaintiff, all the questions of fact and law in this case are thereby decided in favor of the plaintiff in this action, except the question of damages; and that, in case the general term should reverse the judgment in that case, and send the case back for a new trial, this stipulation should be of no effect.” There is no real discrepancy in these several entries. That of the clerk merely notes that the stipulation was made; that of the judge states its substance; and that of the stenographer records it in full, in the terms in which it was framed by consent of counsel on both sides. The special term was entirely justified by the proofs in deciding that the stipulation was in fact made as recorded in the minutes of the stenographer and verified by him. Such being the stipulation, no ground of fraud, surprise, or mistake is shown or suggested why the defendant should be relieved from its operation and effect. He was represented by counsel of his own choice. He asked for the favor of a postponement of the trial, and volunteered the stipulation as a condition of its being granted. The consideration for the stipulation had been fully rendered, and in one respect, at least, the plaintiff could not be restored to the same position as when the stipulation was accepted,—her chosen counsel, earnest, zealous, full of resources, and fully prepared to try her cause, had died since the postponement of the trial. But, on general principles, such stipulations, which should not be lightly made, when they are made without fraud, deceit, or mistake, must be enforced. The order refusing to set aside the stipulation in this case must be affirmed.

In March, 1891, the decision of the general term was rendered in the case of Hall v. Germain, 14 N. Y. Supp. 5, affirming the judgment in favor of the plaintiff therein, and at the next circuit thereafter—in June, 1891—this cause was brought to trial, and was tried under the stipulation above mentioned. The trial was thus necessarily in the nature of an assessment of damages. All the questions of fact and law bearing upon the liability of the defendant were held to be determined in favor of the plaintiff, and the only question open to be litigated was the extent of the pecuniary loss sustained by her in the death of her husband. Of this question one important element was the earning capacity of the deceased at a time immediately preceding the intoxication from which his death resulted, and another was the then probable duration of his life; and both were, in large measure, dependent upon his then existing condition of physical health or disease. It was therefore plainly competent for the defendant, even under the restrictions of the stipulation, to give evidence tending to show, not any immediate cause of death other than the intoxication complained of, but any other cause, either of probable incapacity for labor or of probable shortness of life. This rule, we think, was clearly violated by one or more of the rulings of the court. Thus counsel for the defendant offered to show, by two witnesses who were on the stand, that four or five weeks before his death the plaintiff’s husband fell off from a canal bridge, a distance of some 12 feet, striking on the back of his head and shoulders, and that he was taken up unconscious, with blood running from his nose and ears, and that after that time he was unable to do any work, or much of any work; and, in. connection with that evidence, to show what was theextent of the injuries received by that fall. This evidence was excluded on the objection of the plaintiff, and the defendant excepted. We.think this exception was well taken. The evidence certainly tended to show a reduced capacity for labor, and a probable abbreviation of life; and was thus in two respects competent on the question of the damages sustained by the plaintiff. For this reason the judgment and order denying the-motion for a new trial should be be reversed, and a new trial granted.

Order denying the defendant’s motion to set aside the stipulation affirmed. Judgment and order denying motion for a new trial reversed, and a new trial granted, with, costs to abide the event. All concur.  