Miller v. McCloskey — 9 Abb. N. Cas. 303

Majority

p. 303

Miller v. McCloskey^[1]

N. Y. Supreme Court ; General Term,

May, 1881.

Headnote

Pleading.—General Denial.—Negligence.

A denial must be in such form, as to show at once upon what fact the issue is intended, to be taken; it is therefore not sufficient to deny such portions of the complaint as are not otherwise admitted or avoided, when the other clauses of the answer do not specifically identify the allegations to which they refer; so that the denial does not indicate the particular portion of the complaint to which it is directed.

The rules as to contributory negligence of children, and the obligation resting on persons in chárge of a school, in regard to condition of premises,—discussed and applied.

Appeal from a judgment rendered upon the dismissal of the complaint upon the trial.

Jacob Miller, by Peter Miller, his guardian ad litem, sued John McCloskey for damages for injuries occasioned by falling into the basement of partly destroyed house belonging to him.

The allegations 'ff the complaint were as follows :

“ I. That he is an infant under the age of fourteen years.

“II. That on or about the 18th day of July, 1877,

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and previous to the commencement of this action, Peter Miller was duly appointed the guardian ad litem, of this plaintiff for the purpose of prosecuting this action.

“ III. That John McCloskey, the defendant, is the owner in fee and was such before, at the time of, and since the occurrence hereinafter mentioned, of certain premises in the city of New York, situate in the Twenty-third ward of said city, distant about 260 feet and 11 inches westwardly from Third avenue and extending through from One-Hnndred-and-Fiftieth to One-Hundred-and-Fifty-first streets, with a frontage on each of said streets of about 150 feet, which said premises were at the times aforesaid and now used by said defendant, his agents and servants for the purpose of a school known as the “ Marien Institute.”

‘1IV. That before and at the time of said occurrences, the said premises were by said defendant, his agents and servants wrongfully, illegally and negligently suffered to be in a condition unsuitable for the purposes for which they were used and dangerous to the lives and limbs of the children attending the said school. That a portion or part of said premises in the rear of the school building having an area of about 50 by 100 feet, was before, at the time of, and since the said occurrences, suffered to be and remain at an altitude of about twenty feet above the surface of the adjacent street and the rest of the said premises. That upon this area were the remains of a house, consisting in part of a brick wall, vault or covered apartment, the ceiling or cover of which was some seven feet high and from which depended one or more iron hooks about three feet long. That at one end of said vault was an open doorway and at the other a window or aperture some three or four feet distant from the said hooks. That said area and vault were by said defendant, his agents and servants, at the times aforesaid, knowingly, wrongfully,, carelessly, negligently and unlawfully left unenclosed, un

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protected and easily and readily accessible to the children of the said school.

“ V. That on or about the 7th day of June, 1877, the plaintiff herein, being at that time a pupil of said school and lawfully upon said premises, fell through the window of the vault aforesaid into said vault and upon one of the said hooks, causing an anchor-formed laceration of the left side, thereby tearing and more or less permanently injuring the buccinator, masseter, risorius, zygomatic-major and obicularis ovis muscles, the facial and buccal branch of the infer-maxillary nerves, the transverse facial artery and all the buccal or molar glands, necessitating the extraction of the said glands. That the said occurrence was in no way caused by any contributory negligence on the part of the plaintiff, but was entirely produced by the imprudent, negligent, careless, reckless and unlawful conduct of the defendant, his agents and servants as aforesaid. That the plaintiff from, and in consequence of the said injuries, became sore and sick, was for over four weeks confined to his bed, suffered great pain of mind and body ; that, although the wound has healed, the face is greatly deformed and disfigured, and the sense of hearing impaired, and his constitution and person generally have been, and are, as he verily believes and avers, seriously and permanently injured, to his damage §5,000.

The allegations of defendant’s answer were as follows :

“I. He admits the paragraph in said complaint numbered ‘ first ’ therein.

“II. He admits that he is and was at the time in the said complaint set forth the owner of the premises mentioned therein.

“III. He admits that there is on said premises an area elevated as is mentioned and described in said complaint in paragraph 1 fourth ’ thereof, but alleges

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that the same formed at the times therein mentioned no part of the school therein mentioned or its appurtenances, and further alleges that the same was entirely secure and safe, and was in a condition entirely suitable for the purpose for which the same was used.

“ IV. He admits that the plaintiff herein was a pupil of the school mentioned and which occupies part of the said premises described in said complaint at the time therein set forth.

“V. He says that he has not sufficient knowledge or information to form a belief as to the fall, the circumstances thereof set forth in said complaint, or the injuries mentioned as sustained and described in the complaint herein, or the appointment of said guardian in the complaint set forth, and therefore denies the same.

“ VI. He denies each and every allegation in said complaint contained not hereinbefore admitted or avoided.

“VII. And for a further separate and distinct defense this defendant alleges that if the plaintiff sustained the injuries in the complaint set forth, the same were in no way caused by any negligence on the part of this defendant, his agents or servants, but that the same were caused and sustained through the negligence and fault of said plaintiff, and while trespassing on defendant’s land, having wrongfully and without the consent and against the protest of the defendant, his agents and servants, entered thereon and having induced others to so enter thereon.”

John Graham, and James Edward Graybill, for appellant.

Thomas F. Byrne, for respondent.

The action was prosecuted to recover the damages sustained by the plaintiff by a personal injury occasioned by falling into the basement of the

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remains of a house situated upon premises owned by the defendant. Upon these premises a building existed, which was used as a school, at which the plaintiff was in attendance as a pupil. The place in which the injury was received was upon a portion of the grounds immediately in the rear of the school building; at the side of it were grounds connected with the school, the grade of which had been reduced to the level of the adjacent street, while that upon which the remains of the house existed had not been changed from its natural condition. The side of it was abrupt, and it extended to a height of nearly twenty feet. A stairway remained upon the side from about three feet above the level of the graded ground to the upper part of the old basement. This basement had a window in one end and a door at the other. The plaintiff, with one or more of the other pupils, was playing upon the ground, and he ran up these stairs to the window, through which he slipped and fell into the basement, and he was caught in his fall by an iron hook which inflicted a painful and serious wound upon his face. It has been urged in support of the dismissal of the complaint that the defendant was in no way concerned in carrying on the school, and for that reason that the action could not be maintained against him. But this point was not taken at the trial, for the motion to dismiss the complaint was placed solely upon the ground that the plaintiff had not proven any cause of action. If a cause of action was made out, it was not suggested that the suit could not be sustained against the defendant. The trial also proceeded upon the assumption that he was the party who was liable, if any person was responsible , for the injury. In the complaint it was alleged that he was the owner of the property, and that it was used by him, his agents and servants, for the purposes of a school, and by his answer he admitted that he was the owner of the premises. Other admissions were also

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contained in the answer, united with affirmative allegations of fact exonerating the defendant from liability. These were followed by a specific denial of other portions of the complaint, and then it was stated that the defendant denied every allegation not before admitted or denied.

There was no general denial of the complaint, and this division of the answer was not a specific denial, as it should have been if the defendant by means of it intended to controvert the allegation that he used the premises for the purpose of a school. As the provisions of the Code have been formed upon the subject, where the complaint is not generally denied, the defendant is required by his answer to indicate the part of it intended to be controverted. The denial, as it has been authorized, must be specific ; that is, if must be made in such terms as will enable the plaintiff to know, .by the language made use of, the particular portion of the complaint to which it is intended to be directed. It is not sufficient to deny such portions as are not otherwise admitted or avoided. The Code has not provided for that mode of pleading, but the purpose and intent of the provision made upon this subject is to oblige the party making his denial to direct his answer to the specific allegation intended to be controverted, and to do that in such a manner as to enable the court, as well as the other party to the action, to see at once what the facts are upon which issue is intended to be taken. The language made use of by the Code upon this subject is consistent with no other construction (Code, § 500). Its object is to enable the other party and the court readily to discover the allegations upon which the disposition of the action must depend. A plain and direct denial can alone be specific, as the Code has required it to be, when no general denial is contained in the answer; and this was not a compliance with that requirement. It may be properly assumed, therefore,

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in the present consideration of the case, that the school was carried on either directly or indirectly by the defendant.

[The court then reviewed the merits and held that it was proper in plaintiff’s parent to allow him, he being about thirteen, to attend school alone, and to exercise control over his own movements while there ; that the plaintiff was lawfully upon the premises, and that as he was there in the capacity of a pupil in attendance upon the school, the obligation existed upon the party carrying it on to observe reasonable and proper care in keeping the premises in such a condition that they might be used, as they would ordinarily be expected to be used by him, without probable risk to his personal safety; that this obligation appeared not to have been observed; and that the plaintiff was required to use only that degree of care and caution which might reasonably be expected from a person of his age and experience.

The court also held that the evidence did not justify the conclusion as a legal deduction that there was negligence on plaintiff’s part.]

Judgment reversed and a new trial ordered, with costs to abide the event.

Davis, P. J., and Beady, J., concurred.