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Newman v. Seifter

131 A.D. 151 Court Second Department, Decision date 1909-03-05 English

Delivered by *152 Gaynor, J.:

Contents

Majority

p. 151
Selina R. Newman, Respondent, v. Sadie Seifter and Daniel Snyder, Appellants.
Second Department,
March. 5, 1909.

Headnote

Evidence — special damage not pleaded—sufficiency of objection.
One objecting to the admission of evidence of special damage on the ground that it was not pleaded, must point out the express ground of the objection. A mere objection that the evidence cannot be given under the complaint or that the damage is not included in it is too general.
Appeal by the defendants, Sadie Seifter and another, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered after a trial without a jury.
The action was on an undertaking on attachment.-
Edward Snyder, for the appellants.
Arthur Weil, for the respondent.

Error is claimed in the admission of evidence of the services of counsel in vacating the attachment as an item qf damage. Although the trial Judge permitted himself to be harassed with 40 or more crude and repetitious objections to such evidence, instead of stopping them, the precise objection now urged was not presented, viz., that such expense was “ special damage ” and not pleaded (Strang v. Whitehead, 12 Wend. 64 ; Blynn v. Smith, 22 N. Y. St. Repr. 69 ). This objection is highly technical and has to be presented with precision like all special or technical objections. To loosely object that the evidence cannot be given under the complaint, or that such damage is not included- in it, is too general. It does not point out to the court any precise objection. It was the duty of the attorney for the defendant to point out to the court that there is a rule of pleading that all special damage has to be specially pleaded, item by item, in order to be proved, and show that the damage came under that head.

The judgment should be affirmed.

Rich, J., concurred; Woodward, Jenks and Miller, JJ., concurred in result.

Judgment and order of the Municipal Court affirmed, with costs.

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