Majority
p. 898Johanna Miller Moosman, as Administratrix, etc., of Jacob Henry Moosman, Deceased, Appellant, v. The New York, New Haven and Hartford Railroad Company, Respondent.
Judgment reversed on reargument, and new trial granted, costs to abide the event. The defense of contributory negligence is not pleaded. To be proved, it must be
p. 899
pleaded. (See Code Civ. Proc. § 841b ;[1] Sackheim v. Pigueron, 215 N. Y. 62 .) Otherwise, the plaintiff would be compelled to enter into a controversy over a matter concerning which she had no notification in the answer, that the defendant proposed to assert as an exemption from liability. Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred..
* Added by Laws of 1918, chap. 228.— [Rep.
Cases cited
- Sackheim v. Pigueron 215 N. Y. 62 p. 899