Cady v. City of New York

Order, entered on March 29, 1963, unanimously reversed on the law, with $20 costs and disbursements to appellant, and the motion granted. In this action damages are sought for personal injuries and wrongful death of a deceased fireman, who had been in the employ of defendant city. 'The latter in its amended answer alleged as a partial affirmative defense and" in mitigation of damages that the widow of decedent was receiving and would receive during her lifetime a stated sum annually in the form of a pension granted by the Pension Fund of the Fire Department of the city. The amount, it was alleged, constitutes one half of the salary of deceased. The fund is composed of moneys received from various sources including contributions made by members of which decedent was one. If the amounts from all other sources are insufficient to pay pensions and benefits the Board of Estimate of the city is mandated to appropriate the deficiency. (Administrative Code of City of New York, § B19-3.0.) We conclude that the pension payments sought to be offset are from a collateral source and proof thereof would not be admissible upon the trial in mitigation of damage. (Nealy v. Rennert, 9 N Y 2d 202, 206; Lehr v. City of New York, 16 A D 2d 702; United States v. Price, 288 F. 2d 448, 450, 451.) Concur — Botein, P. J., Breitel, McNally, Stevens and Bastow, JJ.