No one questions but that the plaintiff, as administratrix upon her brother's estate, might have maintained an action in our courts, and under our laws, for damages for the personal injuries sustained by her brother from the defendant's negligence in the State of New York. She has not attempted, however, to avail herself of the right of action given by the laws of our State, but has chosen to endeavor to enforce, in the courts of this State, a right of action given by the laws of the State of New York, evidently believing it would be to her advantage to do so. Whether, when our own laws furnished to the plaintiff, as administratrix, an adequate remedy — and perhaps one more beneficial for those interested in the decedent's estate than did the laws of New York State — for the injuries to her intestate, our courts, upon objection made, would, as a matter of comity, enforce the remedy given by the laws of another State where the accident happened, and which fix a different rule or limit of damages than those established by our laws, we have no occasion to decide in the present case, since that question is not raised by the appeal. The plaintiff, by her complaint, expressly asks and asks only, for the enforcement of the right of action given by the law of New York. The defendant, if it does not concede that this action is to be governed by the laws of the State of New York as *Page 283 to the character of the damages recoverable, at least makes no objection to the plaintiff's said claim upon that subject. This is the plaintiff's appeal, and she is in no position to claim that the court erred in applying correctly the law which she herself invoked. We have therefore only to decide whether the trial court erred in holding that the damages awarded were excessive, considering the character of the damages recoverable by the laws of New York.
Again, we are not to enquire whether a verdict for any sum over $1,000 and under $4,000 would have been excessive, but only whether the verdict for $4,000 was excessive. That was the only verdict rendered, and the only one set aside. The statement of the trial judge, that the verdict would be set aside unless the plaintiff remitted all except $1,000, was not a reduction of the verdict to $1,000. The practice of setting aside an entire verdict which is excessive unless a part of it is remitted, is sanctioned in this State. Dunning v. Crofutt, 81 Conn. 101, 104, 70 A. 630.
By the law of New York, as claimed by the plaintiff and alleged in the complaint, the damages recoverable in this action are exclusively for the benefit of the decedent's next of kin, in this case his father, and the damages to be awarded are limited to a "fair and just compensation for the pecuniary injuries resulting from the decedent's death, to the person or persons for whose benefit the action is brought."
The words "fair and just compensation for the pecuniary injuries" mean reasonable compensation for such injuries, considering the character, qualities, capacity and condition of the deceased, and the age, circumstances and condition of his next of kin or the person or persons for whose benefit the action is brought, and not considering, as elements of damage, the suffering of the deceased from the injuries, nor the grief of such *Page 284 relatives; and such is the interpretation of these words by the courts of New York. Tilley v. Hudson River R.Co., 24 N.Y. 471, 475, 29 id. 252; Ihl v. Forty-secondStreet R. Co., 47 id. 317, 321; Countryman v. Fonda, J. G. R. Co., 166 N.Y. 201, 59 N.E. 822; Etheringtonv. Prospect Park C. I. R. Co., 88 N.Y. 641, 643.
In Smith v. Lehigh Valley R. Co., 177 N.Y. 379, 384,69 N.E. 729, which was an action like the present one, the court said that "such injuries are to be compensated for on the basis of the monetary value of the services of the deceased to her husband and children. Into such a case the personal element does not enter, for the law does not compensate for grief or sorrow, but only for the actual pecuniary loss." The following cases, cited by defendant's counsel, indicate to some extent the meaning given by the courts of New York to the words "fair and just compensation for the pecuniary injuries resulting from the decedent's death, to the person or persons for whose benefit the action is brought."
In Lipp v. Otis Bros. Co., 161 N.Y. 559, 562,56 N.E. 79, the suit was for the benefit of the father, who, as in this case, was the sole next of kin of a deceased son, who left no wife or children. A verdict for $5,000 was set aside. In Carpenter v. Buffalo, N.Y. P.R.Co., 38 Hun (N.Y.) 116, 119, the action being for the benefit of the father as next of kin of a deceased son, a verdict of $4,000 was held to be excessive. In McIntyrev. New York Central R. Co., 37 N.Y. 287, 296, the deceased earned $1 a day, and left three children over twenty-one years of age, who lived away from home and for whom she was in the habit of making clothing and sending it to them. A verdict of $3,500 was reduced to $1,500. In Pitkin v. New York Central H.R. R. Co., 94 N.Y. App. Div. 31,87 N.Y.S. 906, a verdict of $1,500 as compensation to a father for *Page 285 the loss of his son, the father having died six months after his son was killed, was set aside as excessive. InWells v. New York Central H.R.R. Co.,78 N.Y. App. Div. 1, 78 N.Y.S. 991, and Dinnihan v.Lake Ontario Beach Imp. Co., 8 N.Y. App. Div. 509,40 N.Y.S. 764, verdicts of $3,500 in one case and $4,000 in the other, each as compensation for the death of a young girl, were each reduced to $2,500. In Klemm v. New York Central H.R. R. Co., 78 Hun (N.Y.) 277, 28 N.Y.S. 861, a verdict of $5,000 was rendered for the death of a mother leaving a son and a husband, and a new trial was granted unless the plaintiff would remit all but $2,500.
The plaintiff, on the other hand, cites numerous cases in which the New York courts have refused to interfere with the verdict rendered, and from which he claims that $4,000 was no more than fair and just compensation to the plaintiff for his pecuniary loss, within the meaning of those words of the statute as interpreted by the courts of New York.
The laws of New York are controlling as to the character of the loss for which compensation can be recovered in an action under the statute in question, but by the law of New York, as well as by that of our own State, the jury, in the exercise of a reasonable judgment, which is subject in a measure to the supervision of the presiding judge at the trial, are to determine the sum which is a fair and just compensation for such loss.Houghkirk v. Delaware Hudson Canal Co., 92 N.Y. 219;Birkett v. Knickerbocker Ice Co., 110 N.Y. 504,18 N.E. 108.
Applying the law of New York as to the character of the loss for which compensation could be recovered in this action, and giving proper consideration to the evidence showing the situation of the decedent's father, his extreme old age, and ill health, the earning power *Page 286 of the deceased, and the relations between him and his father, we are satisfied that the trial judge committed no error in setting aside the verdict and granting a new trial.
The plaintiff has no reason to complain because the new trial was limited to the question of damages, as such limitation is to her advantage.
There is no error.
In this opinion the other judges concurred.