
    Michael Scolavino, an Infant, by Anthony Scolavino, His Guardian ad Litem, Appellant-Respondent, v. State of New York, Respondent-Appellant.
    Third Department,
    December 30, 1946.
    
      Weissberger <& Leichter, attorneys (M. M. Leichter and J. Wolfson of counsel), for appellant-respondent.
    
      Nathaniel L. Goldstein, Attorney-General, and Wendell P. Brotan, Solicitor-General (John R. Davison and John F. Hmiel, Assistant Attorneys-Gencral of counsel), for respondent-appellant.
   Per Curiam.

Appeal by the State from a judgment of the Court of Claims for $9,000 in favor of claimant, which was entered in the Court of Claims Clerk’s Office on May 17, 1946, and a cross appeal for inadequacy by the claimant.

While claimant was strapped to his bed by a restraining sheet, he was frightfully assaulted by another inmate of the Harlem Valley State Hospital, Benturira, who broke from his restraining sheet and in the assault, besides other injuries, enucleated both of claimant’s eyes. The opinion in the Court of Claims (Lotmsbeery, J.) discloses lack of attendants and other acts of palpable negligence.

The determination of the monetary loss which Scolavino suffered by being made totally blind is complicated. The amount awarded would be entirely inadequate to compensate a twenty-year-old man who was mentally alert. Were we to start with the assumption enunciated in the instrument famous as the inception of the American Nation, that all men are created equal, then a higher value would attach to each of the human functions remaining to one who is in part deficient. Recognizing possibly that such a conclusion is non sequitur, it certainly does follow that this boy, upon whom the full light of reason had never shone might, with the aid of his vision, have been trained to perform simple tasks, now must go through life in absolute darkness, with no possibility of being partially trained.

It has been argued that money will have no meaning to this claimant because he will always have to remain in a State institution, if there be one for the blind who are mentally deficient. That conclusion seems specious, for his natural guardians should have an opportunity to select a private institution, if so advised. The amount of damages should be increased from $9,000 to $20,000.

Brewster, J.

(dissenting). I cannot agree to an increase in the award of damages. The evidence is insufficient to establish any pecuniary injury. Claimant is indigent and suffers an incurable mental illness which is superimposed upon his irremediable mental deficiency. The great weight of evidence discloses that prior to his injury in question his plight was such that not only would he never have been a free or to any extent a useful member of society, but rather, that he would have continued a burden thereon during the remainder of his life. There is no evidence to establish that his welfare can ever be better served or as well served than as by his continuance in the care of the State. The appraisal of compensatory damages in terms of money is especially difficult for such a measure seems wholly inadequate. The evidence presents too few factors for its functioning. Even the base as to pain and suffering finds some equivocation and uncertainty in the proofs. Any amount to which we may advance the assessment seems futile in the furtherance of justice. It is clear that no penalty should be laid upon the benefactor. So, in cold justice to both sides no increased amount will make the bar of the scale more level — more satisfying to judicial conscience. The judgment should be affirmed.

Hill, P. J., Heffernan, Foster and Lawbence, JJ., concur in Per Curiam opinion; Brewster, J., dissents in a memorandum, as to the increase of the judgment.

The judgment of the Court of Claims is modified on the law and facts by increasing the amount of the award from the sum of $9,000 to the sum of $20,000, and as so modified it is affirmed, with costs.

This court disapproves the fifth conclusion of law contained in the decision which reads: 5. That claimant is entitled to an award herein against the State of New York in the sum of Nine Thousand Dollars ($9,000.00) ” and in place and stead thereof finds as follows: 5. That the claimant is entitled to an award herein against the State of New York in the sum of Twenty Thousand Dollars ($20,000.00) ”.  