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Moosman v. New York, New Haven & Hartford Railroad

156 N.Y.S. 1135 Court N.Y. App. Div. Decision date 1915-12-30 English

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p. 1135
Johanna Miller MOOSMAN, as administratrix, etc., of Jacob Henry Moosman, deceased, appellant, v. The NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, respondent.
(Supreme Court, Appellate Division, Second Department.
December 30, 1915.)

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 pleaded. See section 841b, Code of Civil Procedure. Sackheim v. Pigueron, 215 N. Y. 62 , 109 N. E. 109 . Otherwise, the plaintiff would be compelled to enter into a controversy over a _ matter concerning1 which she had no notification in the answer, that the defendant proposed to assert as an exemption from liability. Jenks, P. J., and Garr, Stapleton and Putnam, JJ., concur.

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