John P. Derico, Individually and as Guardian ad Litem of Donald S. Derico, an Infant, Appellants, v. Louis Rouselle, Respondent, 22 A.D.2d 98

Herlihy, J. The infant plaintiff, as a result of the accident on April 28, 1959, suffered injuries to his legs, left elbow and face, the most severe being a compound, comminuted fracture of the nasal bone with a dislocation and deviation of the nasal septum. He was admitted to the hospital following the accident for the purpose of reducing the nasal fracture, realigning the nasal bone and attempting to bring the internal nasal structures into normal anatomical position. In February, 1961 the doctor readmitted him to the hospital for the purpose of having a septectomy.

In the latter part of 1962, three years after the accident, he was examined by the doctor who found he was still suffering from some nasal deformity, which condition he stated would be permanent and would result in breathing difficulties and pain and suffering in the nature of frontal headaches. The defendant offered no medical testimony. We encourage the trial court, which sees and hears the witnesses, to exercise its discretion as to the adequacy of the quantum of jury verdicts.

Nevertheless, after an examination of the record on appeal, there are occasions when this court will exercise the prerogative of substituting its judgment. Accordingly, it is our unanimous opinion that what will adequately and reasonably compensate this infant plaintiff for the enumerated injuries is the sum of $15,000.

The order should be modified, on the law and the facts, so as to provide that the verdicts be set aside and a new trial granted, with costs to abide the event, unless, within 20 days after service of a copy of the order to be entered hereon, plaintiff guardian ad litem shall stipulate to reduce the verdict in the infant’s action to the sum of $15,000, and, as so modified, affirmed. Gibson, P. J., Reynolds, Taylor and Aulisi, JJ., concur.

Order modified, on the law and the facts, so as to provide that the verdicts be set aside and a new trial granted, with costs to abide the event, unless, within 20 days after service of a copy of the order to be entered hereon, plaintiff guardian ad litem shall stipulate to reduce the verdict in the infant’s action to the sum of $15,000, and, as so modified, affirmed, with costs to appellants.