
    Morris Fogel, an Infant, by Samuel Fogelnest, His Guardian ad Litem, Respondent, v. Interborough Rapid Transit Company, Appellant.
    
      Fogel v. Interborough Rapid Transit Co., 103 App. Div. 609, affirmed.
    (Argued April 30, 1906;
    decided May 15, 1906.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 8, 1905, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in an action to recover for personal injuries alleged to have been received by reason of defendant’s negligence.
    
      Joseph H. Adams, Frederick S. Randall and Charles A. Gardiner for appellant.
    
      Moses Esberg and Franklin Pierce for respondent.
   Per Curiam.

We have reached thfe conclusion that no errors were committed upon the trial of this case which require a reversal of the judgment appealed from. Hpon the other hand, it seems quite clear that the jury awarded damages upon the theory that plaintiff would suffer from paralysis as the result of his accident. Although a considerable period had elapsed after the accident and before the trial, no such paralysis had then appeared and the probability of its subsequent occurrence rested very largely upon the opinion of one physician who testified as an expert upon that subject. His opinion is necessarily fallible and not entirely satisfactory. He stated that the paralysis which he indicated would occur within a period of two or three years from the date of the accident, or not at all. That period has now substantially elapsed, and it should be practicable to substitute for opinion and theory actual facts and quite conclusively to demonstrate whether the plaintiff has in fact suffered from, paralysis as the result of his accident.

Therefore, we think that the affirmance of the judgment appealed from should be without prejudice to the right of the defendant, upon proper proofs showing that paralysis has not occurred, to move for a new trial of this action.

Cullen, Ch. J., O’Brien, Vann, Werner, Willard Bartlett and Hiscock, JJ., concur; Haight, J., absent. Judgment affirmed, with costs.  