Mitchell v. Cody — 58 N.Y. St. Rep. 138

Majority

p. 138

Mary Mitchell, as Administratrix of Patrick Mitchell, Deceased, Resp’t, v. William Cody, App’lt.

(New York Superior Court, General Term,

Filed December 29, 1893.)

Headnote

1. Cause—Pboximate.

Where death is produced by a fall upon a pavnment, the cause of which fall is a blow struck by the defendant, such blow is the proximate cause of the death.

2. Pleading—Denial.

Pacts in justification or mitigation of damage are not admissible under a general denial.

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

Fellows <& Hartman, for app’lt; C. Stickler, for resp’t.

Upon the facts as found by the jury under an unexceptionable charge the direct cause of the fall of the plaintiff’s intestate was the blow struck by defendant, and the circumstance that the head of the deceased came into contact with the pavement upon which he fell was the natural and proximate result of the force wrongfully exerted by the defendant. Death having ensued therefrom, such death clearly was the natural and proximate result of defendant’s wrongful act; and the existence of the pavement cannot be treated as the intervention of a new agency which produced a consequence for which the defendant is not liable.

Defendant’s application at the trial for leave to withdraw a juror was not denied for want of power to grant it, and the ruling as made presents no ground for reversal.

The rulings of the trial judge denying defendant's right to introduce special matter in justification or in mitigation were all proper under the pleadings. The answer contained only a gene

p. 139

ral denial. Facts in justification or in mitigation of damage, directly and naturally flowing from the wrongful act complained of, must be pleaded if the defendant desires to provet hem at the trial. Moreover, the defendant in the end substantially succeeded in introducing his proof in that respect. Upon the whole case no reason appears which calls for reversal. .The judgment and order should be affirmed, with costs.