Majority
p. 41EMPIRE STATE GARAGE v. CARROLL. (Supreme Court, Appellate Term. December 22, 1909.) Argued before GIEGERICH, GOFF, and LEHMAN, JJ.
Headnote
Courts (§ 189[1] )—Municipal Courts—Pleading and Proof.Under a general denial to an oral complaint in Municipal Court for storage of an automobile, defendant may not prove the loss or value of a .spare tire attached to the car, which loss occurred while the car was in storage.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Fifth District.
Action by the Empire State Garage against John Pratt Carroll. From a judgment for plaintiff, defendant appeals.
Reversed, and new trial ordered.
H. & H. S. Mendelsohn (Herman S. Mendelsohn, of counsel), for appellant.
The pleadings were oral. The complaint was for “storage, work, labor, and services and materials furnished.” The answer was a general denial. The storage pleaded referred to storage of an automobile. Upon the trial the defendant was allowed, against the plaintiff’s objection that it was not pleaded, to prove the loss and value of a spare tire attached to the side of his car, which loss he claimed occurred while the car was in the plaintiff’s care in the garage. The admission of such evidence was clearly erroneous.
Judgment reversed, and new trial ordered, with costs to appellant to abide the event.