Pierre v. State

This appeal was before this court and decided at the November, 1943, term. The judgment appealed from was then affirmed. (See 267 App. Div. 795.) We granted a reargument at the March, 1944, term. [267 App. Div. 935.] Upon a reconsideration we are of the opinion that the court below was not warranted in holding that the evidence presented by the opinion testimony of respondent’s sole expert witness so overéame the possibilities and probabilities of decedent’s recovery from his mental malady that it could be said as a matter of law that the pecuniary injury his next of kin sustained by bis wrongful *809death was limited to the funeral expenses. Judgment appealed from reversed on the facts and the case remitted to the Court of Claims for such further proofs relative to the prognosis of decedent’s mental disease as either party may offer and for a reappraisal of the pecuniary injury. We reverse the Court of Claims’ finding of fact No. 3 and annul conclusion of law No. II, with costs to appellant. All concur.