Baldwin v. New York Central & Hudson River Railroad — 18 N.Y. St. Rep. 958

Majority

p. 958

Charlotte A. Baldwin, App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.

(New York Superior Court, General Term,

Filed October 25, 1888.)

Headnote

Practice on appeal—What appellate court can consider

The court on appeal can only examine the action of the court helow upon the matters actually presented upon the trial.

Appeal by plaintiff from judgment dismissing complaint.

Samuel H. Randall, for app’lt; Henry H. Anderson, for resp’t.

The action was for damages for alleged negligence of the servants of defendants in managing a horse car which the complaint alleged was owned and operated by defendants.

The only proof given by plaintiff to show that the defend • ants were responsible for the negligence of the person driving the car in question, was a release which the defendants received from the plaintiff from all causes of action which she might have against them. This release was not an admission of liability. At the most, it was an admission that the plaintiff had made a claim that the defendants were liable.

In the course of plaintiff’s case it was shown that the defendants were not the owner of or in occupation or management of the car in question.

On the argument of the appeal it was claimed that the answer did not put in issue the averment of the complaint on this point. It appears, by the case, that the plaintiff did not take such a position upon the trial, and presented to the court a claim based upon the testimony produced by her. The court, on appeal, can only examine the action of the court below upon the matter, actually presented upon the trial.

Judgment affirmed, with costs.