Hoffman v. Ruddiman — 55 N.Y. St. Rep. 214

Majority

p. 214

Louis Hoffman, Resp’t, v. James Ruddiman et al., App’lts.

(City Court of Brooklyn, General Term,

Filed October 23, 1893.)

Headnote

1. Negligence—Damages—Pleading.

In an action to recover damages for negligent injury to a horse, the expense of hiring another horse to do its work is special damage which cannot he recovered unless specifically set forth in the complaint.

p. 215

3. Same.

An allegation in the complaint that plaintiff was put to trouble and expense in consequence of the injury refers only to such trouble and expense as naturally followed from the injury.

Appeal from, judgment in favor of plaintiff, and from order denying motion for a new trial.

Tredwell & Catlin, for app’lts; Hirsh & Rasquin, for resp’t.

This action was brought to recover damages ■for injury to a horse, which resulted from negligence of the defendants. The allegation as to damages in the complaint, after .amendment on the trial, was as follows:

“ That by reason of the damages to said horse, caused as aforesaid, and the trouble and expense incurred in consequence thereof, the plaintiff has been injured, in all, to his damage two hundred dollars.”

On the trial plaintiff gave the following answers to his counsel:

“ Question. Did you have another horse, during the time this horse was ill, to do your work? Answer. Yes, sir. Q. How much did you pay for the use of the other horse? (Objected to as irrelevant, immaterial and incompetent, and not within the issue. Such damages should have been specifically set forth in the complaint. Objection overruled. .Defendants except”)

We are of opinion that the foregoing exception was well taken, on the authority of Gumb v. Twenty-third St. Railway Co., 114 N. Y., 411 , 414; 23 St. Rep., 748 . The damages sought to be proven were special, and should have been specifically set forth in the complaint. The “trouble and expense” mentioned in the •complaint referred to only such trouble and expense as naturally followed from the injury. The allegation as to loss was general, and did not cover any claim for special damages. Judgment and order denying new trial reversed, and new trial granted, with costs to appellants to abide the event.

Van Wyck, J., concurs.