Schaus v. Manhattan Gas-Light Co. — 45 How. Pr. 481

Majority

p. 481

N. Y. SUPERIOR COURT.

William Schaus, plaintiff and appellant, agt. The Manhattan Gas-light Company, defendant and respondent.

General Term,

June, 1873.

Headnote

Under a general or specific denial of any part of the complaint which the plaintiff is required to prove to maintain Ms action, the defendant, upon principle and authority, is at all times at liberty to prove anything tending to show that plaintiff's allegation is untrue.

Before Ebeedman, Cubtis and Van Yoest, JJ.

Appeal by plaintiff from judgment entered in favor of defendant upon the verdict of a jury and from the order denying plaintiff’s motion upon the judge’s minutes for a new trial.

F. R. Shebman & A. R. Rodgebs, for appellant.

Henby Hv Andeeson, for respondent.

This action was brought to recover damages alleged to have been sustained by plaintiff from water which entered the plaintiff’s cellar, as claimed by plaintiff, through the negligence of the defendant in opening a ditch in front of plaintiff’s premises for laying gas mains in the street. On the trial evidence was admitted, against plaintiff’s objection and exception, which tended to show that the water which caused the injury did not coiné from the ditch, but from the sewer or the connection with the sewer, and that the injury was the result of a defective sewerage system in that vicinity. We think the evidence was properly received. Although under the requirements of section 149 of the Code new matter must be-pleaded, and consequently the

p. 482

defenses of payment, release, accord and satisfaction of arbitrament, and many other entire and partial defenses, which, while they do not deny the cause of action stated in the complaint, yet seek-to avoid or to bar it, and which were formerly available under the general issue; must now be set up in the answer before evidence in support thereof can be received (McKyring agt. Bull, 16 N. Y., 297 ), yet under a general or specific denial of any part of the complaint, which the plaintiff is required to prove to maintain his action, the defendant, upon principle and authority, is' at all times at liberty td prove anything tending to show that plaintiff’s allegation is untrue ( Wheeler agt. Billings, 38 N. Y., 263 ; Greenfield agt. Mass. Mut. Life Ins. Co., 47 id., 430).

The testimony' of the parties was conflicting, and therefore presented a proper case for the jury. Plaintiff conceded that by refraining from moving for the direction of a verdict subject to an assessment of damages (Rowe agt. Stevens, 44 How., 10 ; S. C., 12 Abb. N. S., 389).

The case having been submitted to the jury under a charge, to which no valid objection lies, and plaintiff’s exceptions to the refusal of the court to charge otherwise, as requested, and to the rulings of the court upon the questions of evidence that arose during the trial, appearing to be clearly untenable, the judgment and order appealed from must be severally affirmed, with costs.

Curtis and Van Vorst, JJ., concurred.