(dissenting):
I am of the opinion that a n&w trial should be granted for the reason that the damages are excessive, being wholly unsupported by the evidence bearing on that question. The record discloses that the defendant presented this point to the consideration of the trial court on its motion for a new trial on the minutes. If the party against whom a verdict is rendered claims.that the saméis excessive or unsupported by the evidence, and presents the question to this court on a case containing the evidence, we have the power and it is our duty to consider and determine the question, applying the rule applicable in such cases. (Houghkirk v. Delaware and Hudson Canal Co., 92 N. Y., 219; Ross v. The N. Y. C. and H. R. R. R. Co., Fourth Dept., decided March, 1884, and not reported; Mandeville v. Marvin, 30 Hun, 282.)
On the argument my mind received a very distinct .impression that there is no reasonable measure, between the injuries sustained by the father of the deceased and the compensation awarded him by the jury. A further and more careful consideration of this subject, has altogether confirmed my first impressions, and I shall attempt to show that they are sustained by reason and authority.
The verdict is for the sole benefit of the father of the deceased. On the trial it was assumed that he was then alive, and the judge in express-terms instructed the jury that the father was the next of kin of the deceased, and they were to give him by their verdict a *86just and fair compensation for .tbe pecuniary injury he had suffered by reason of the death of his daughter. The deceased being a minor, her father had a legal right to her services during her minority, and as the jury have found by their verdict that her death happened by the negligence of the defendant, as the sole cause, he was entitled as a matter of law to a nominal verdict, but nothing more, unless he made proof that he had suffered a pecuniary loss in consequence oí the death of his daughter. If he sustained any such loss it was susceptible of proof and the law exacted its production. The law does not presume that the next of bin of a deceased person has sustained an actual pecuniary loss by reason of his death. As has been stated, where the next of bin is the father and the deceased a minor, then a recovery in a nominal sum is proper, where the negligence of the defendant is the sole cause of the death, for such a verdict simply vindicates his legal right to the services of his child during minority. (Mayne on Damages [Wood’s ed.], chap. 2, p. 5.)
In this case there was no proof of special damages or definite less capable of being established with a proximate accuracy, such as funeral expenses, which might have been allowed if paid or incurred by the father. (Murphy v. The N. Y. C. and H. R. R. R. Co., 88 N. Y., 446.) The damages therefore which the father sustained, if any, were all of a prospective character. The deceased, at the time of her death, did not reside with her father, and he did not at that time claim her services, and by reason of her age and' inexperience, she was incapable of earning anything beyond a reasonable support and the expenses of her education. The elements from which the jury in this case might have assessed the father’s prospective damages, consisted of the age and intelligence of the deceased, and also of the age, health, habits, occupation and financial situation of her father. As to the deceased, everything was proved which the rule requires; as to the father, nothing whatever on these subjects was disclosed by the evidence. The jury were left in utter ignorance on each one of these material and necessary points of inquiry. If alive, proof could have been made on each one of these vital questions, and it was incumbent on the plaintiff tó produce the same. At the time of the trial his whereabouts was unknown. Nine years previous thereto he had abandoned his wife and family and left them to their own resources for support, and *87since that time none of them have seen or beard one word from him. The rule is, and it has been so adjudged in several cases, that the burden of proof in this class of cases is upon the plaintiff: to prove the pecuniary injury, and to establish such facts as would enable the jury to determine what would be a fair and just compensation with reference thereto to the next of kin, to entitle the plaintiff to recover more than nominal damages, and that the ' jury must, in ■fixing a sum as such. damages, be governed by the weight of evidence before them. (McIntyre v. The New York Central Railroad, 37 N. Y., 287; Houghkirk v. D. and H. C. Co., 92 id., 225; Tilley v. Hudson River Railroad Company, 24 id., 479.)
The plaintiff omitted to make proof concerning the age, health, habits of life, and present financial condition of the father, and because of such omission the recovery should have been limited to nominal damages, and all above that sum is unsupported by the evidence and is excessive. The age as well as the condition of health of a claimant are elements to’ be considered in estimating his prospective damages. If he be advanced in years, and in feeble health, his damages would be greatly less than they would be if he were in the prime of life, strong and vigorous. Without proof on these points a jury cannot reason and deliberate on the -subject of damages, and, in such a ease, if more than a nominal sum be given the same must be the result of conjecture, and can be nothing more than a guess. If we uphold this verdict, we do, in effect, say that the jury are omnipotent in this class of cases, and that there is no rule of law to be observed by them in assessing damages. The statute, in terms, restricts the damages to a fair and just compensation for the pecuniary injury sustained by tlm person fqr whose benefit the action is brought. The jury knew nothing concerning the father, who is entitled to the large verdict which they have rendered in his favor, except that many years before the trial, without cause, he deserted his wife and infant children who had the • strongest claims on him for protection, support .and education. The family relation ceased to exist between him and them, and so long as he continued to abandon the deceased, he had no just claim to her services. By reason of his inexcusable conduct she was manumitted from his control and authority, at least until such time as he assumed the position and discharged the duties of a parent, and *88there is no-reason for holding that he suffered prospective damages in consequence of her death. (Canovar v. Cooper, 3 Barb., 115; Lehigh Iron Co. v. Rupp, 100 Pa., 95.)
I am in favor of reversing the judgment and granting a new frial.
Judgment and order affirmed.