Jeanne Leonard, Respondent, v. John Volz, Appellant. Julian Leonard, Appellant, v. John Volz, Respondent

Jeanne Leonard, Respondent, v. John Volz, Appellant. Julian Leonard, Appellant, v. John Volz, Respondent. First Department, February 27, 1920. Negligence — trial — verdict — separate actions by wife for injuries and by husband for loss of services tried together — verdict in wife’s action for substantial damages and in husband’s action for “ no damages”—entry of verdict for defendant in husband’s action erroneous — correction of error on appeal. Where an action by a wife for damages arising out of an injury caused by the negligence of the defendant, and an action by the husband for loss of services arising from the same injury were tried together and the jury returned a verdict 'for the wife for substantial damages and “ no damages for the husband,” it was error to direct the verdict to be entered for the plaintiff in the action by the wife and for the defendant in the husband’s action, for the verdicts being general ones, they were in effect that in the wife’s action there was injury with damage while in the husband’s action there was injury without damage, and the court should have directed that the verdict in the husband’s action be entered for nominal damages. The irregularity in the entry of the verdicts is one which the Appellate Division has power to correct under section 1317 of the Code of Civil Procedure. Appeal in the first action by the defendant, John Volz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of April, 1919, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 25th day of April, 1919, denying defendant’s motion for a new trial made upon the minutes. Appeal in the second action by the plaintiff, Julian Leonard, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of May, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of April, 1919, denying the plaintiff’s motion for a new trial made upon the minutes. Edward A. Alexander of counsel [Frank Weinstein with him on the brief], for the plaintiffs. George F. Hickey of counsel [Frank Herwig with him on the brief; Harry A. Talbot, attorney], for the defendant. [MAJORITY — Per Curiam:] Per Curiam: Jeanne Leonard was injured by the negligent operation of an elevator in the apartment house owned by the defendant, in which she was a tenant. She brought an action for these injuries, and her husband sued for loss of services arising from the same injury. The actions were tried together. The jury returned a verdict in the case of Mrs. Leonard for $10,000 damage “ and no damages for the husband.” The court thereupon directed the verdict to be entered in Mrs. Leonard’s action for the plaintiff in the sum of $10,000, and for the defendant in the husband’s action. The verdicts as thus entered would be inconsistent and would have to be set aside. (Gray v. Brooklyn Heights R. R. Co., 175 N. Y. 448.) Being general verdicts, it would appear that the jury had found in one case that the defendant was negligent and the plaintiff free from contributory negligence, while upon the same facts it had found that the defendant was not negligent or that the plaintiff’s wife was chargeable with contributory negligence. The verdicts, however, as rendered by the jury were consistent. Mrs. Leonard was in a lucrative business; she paid the household expenses and the medical and other expenses incurred by reason of the injury. The verdict was that, in one case, there was injury with damage and, in the other case, injury without damage. The court should, therefore, have directed that the verdict be entered in the husband’s action for nominal damages. We have carefully examined the record and find no error therein requiring a new trial. Under the power conferred upon this court by section 1317 of the Code of Civil Procedure, we can correct this irregularity. The judgment and order in the action of Jeanne Leonard against the defendant is affirmed, with costs. The order in the action of Julian Leonard against the defendant is affirmed and the judgment reversed, without costs, and judgment directed to be entered for the plaintiff for six cents damages. Present — Clarke, P. J., Laughlin, Smith, Page and Merrell, JJ. In the first case: Judgment and order affirmed, with costs. In the second case: Order .affirmed and judgment reversed, without costs, and judgment directed to be entered for plaintiff for six cents damages.