Horton v. Childs Co. — 208 A.D. 765

Majority

p. 765

Anna L. Horton, Respondent, v. Childs Company, Appellant, Impleaded with Another.

Headnote

Negligence — action for personal injuries — evidence of loss of wages and payment of doctor’s bills not admissible in absence of allegation in complaint.

Appeal by the defendant, Childs Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the New York county clerk’s office May 12, 1923, upon the verdict of a jury for $3,000, and also from so much of an order, entered June 6, 1923, as denied said defendant’s motion for a new trial.

Loss of wages and payment of doctor’s bills not having been pleaded, evidence thereof was improperly admitted. The judgment and order should, therefore, be reversed, and a new trial ordered, with costs to appellant to abide the event, unless the plaintiff stipulates to reduce the judgment as entered to the sum of $2,118.95, in which event the judgment as so modified and the order appealed from are affirmed, without costs. Present — Clarke, P. J., Smith, Merrell, Finch and Martin, JJ. judgment and order reversed and new trial ordered, with costs to the appellant to abide the event, unless plaintiff stipulates to reduce the judgment as entered to the sum of $2,118.95, in which event the judgment as so modified and the order appealed from are affirmed, without costs. Settle order on notice.