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Davis v. N. Y., Lake Erie & Westeru R. R. Co., 20 Abb. N. C., 230.

on said engine, but furnished means and materials and fuel for 19 use on said engine which were unfit and unsafe and dangerous to those upon the said engine; all of which was well known to the defendant, but unknown to this plaintiff, and by reason of which defective condition, and lack of repair, and the said use of the unsafe and unfit and dangerous means, materials and fuel so furnished by the defendant as aforesaid, an explosion of gas was caused in the fire-box of said locomotive, by means of which the said plaintiff, while engaged in the performance of his duty, was hurled violently out of the window of the cab of the said 20 locomotive, upon the ground, and received thereby severe and permanent injuries.

The Special Term of the Superior Court allowed the amendment, on the ground that no new cause of action was thereby set up.

The General Term of the Superior Court affirmed the order made at Special Term on the same ground.

The Court of Appeals affirmed the order of the General 21 Term.

EARL, J. These allegations did not constitute a new cause of action; the plaintiff still based his right to recover upon the same injury caused to him at the same time and place by the wrong of the defendant, and all that was added in the amended complaint were additional specifications of the same wrong. The plaintiff, when he framed his original complaint, may have been mistaken as to the cause of the effects from which he suffered the injury, but he was not mistaken as to his cause of


It is a fair test, to determine whether a new cause of action is alleged in the amended complaint, that a recovery had upon the original complaint would have been a bar to any recovery under the amended complaint. If the plaintiff had, however, been beaten or nonsuited upon a trial under the original complaint, because of the insufficiency of the allegations therein contained, the judgment entered would not have barred a recovery under the amended complaint, because the judgment in such a case


Ehrgott v. Mayor, etc., of N. Y., 96 N. Y., 265.

23 would not have passed against the plaintiff upon the merits. There is no doubt that the court may, at Special Term, allow an amendment of a complaint by introducing therein even a cause of action barred by the statute of limitations. But in such case the defendant must not be deprived of his defense of the statute. As the court had power, in the exercise of its discretion, to allow this amendment, we have no jurisdiction to review its discretion, and this appeal should, therefore, be dismissed, with costs.


All the judges concurred.

Appeal dismissed.


New York Court of Appeals, 1884.

[Reported in 96 N. Y.,


1. A general allegation of great bodily injury and consequent continuing disability, lets in evidence of any particular, such as resulting disease of the spine.

2. If not deemed enough to inform defendant, his remedy is by motion to make definite and certain, or for particulars.

Action for negligence.

Plaintiff had a verdict at the trial.

The Supreme Court at General Term reversed the judgment. The Court of Appeals reversed the General Term's decision, and gave judgment for plaintiff. On the question of pleading, EARL, J., said: "Upon the trial, plaintiff gave evidence tending to show that he had a disease of the spine of a permanent nature as the result of his injuries. This evidence was objected to by the counsel for the city, on the ground that the plaintiff had not alleged such a result from the injury in his complaint.

"We think the complaint is sufficient. It alleges that he suffered great bodily injury; that he became, and still continues to be sick, sore and disabled; that he was obliged to spend large sums in attempting to cure himself, and was prevented for a long time from attending to his business, and that he was other

Gumb v. 23d St. R. R. Co., 114 N. Y., 411.

wise injured, to his damage $25,000. These allegations are 3 sufficient to authorize proof of any bodily injury resulting from the accident, and if the defendant desired that they should be more definite, it could have moved to have them made more. specific, or for a bill of particulars."

[The rest of the opinion was not in relation to questions of pleading.]

All the judges concurred.

Order reversed and judgment affirmed.


New York Court of Appeals, 1889.

[Reported in 114 N. Y., 411.]

1. Under a general allegation only such damages as necessarily and immediately flow from the injury can be proved.

2. The fact that in consequence of the personal injuries alleged, plaintiff was obliged to expend money in hiring others to carry on his business, is special damages, and must be specially alleged.

Action for negligence.

Plaintiff had a verdict.


The Superior Court at General Term affirmed the judgment. The Court of Appeals reversed the judgment. On the question of pleading, FOLLETT, J., delivering the opinion of the court, said: "The plaintiff was permitted to testify, over defendant's objection, that the evidence was not within the issue; that while suffering from his injury he employed two men to work in his place, paying them $12 and $15 per week each, $135 in the 2 aggregate. When a plaintiff alleges that his person has been injured and proves the allegation, the law implies damages, and he may recover such as necessarily and immediately flow from the injury (which are called general damages) under a general allegation that damages were sustained; but if he seeks to recover damages for consequences which do not necessarily and immedi ately flow from the injury (which are called special damages), he must allege the special damages which he seeks to recover. It

Fisher v. Rankin, 25 Abb. N. C., 191.

3 is not alleged in the complaint that the plaintiff expended money in hiring others to work in his place; the defendant had no opportunity of contradicting the evidence, and its reception was error. Gilligan v. N. Y. & Harlem R. R. Co., 1 E. D. Smith, 453; Stevens v. Rodger, 25 Hun, 54; Whitney v. Hitchcock, 4 Denio, 461; 2 Thompson on Negligence, 1250, §§ 32, 33; 2 Sedg. on Dam., 7th ed., 606; 1 Chitty's Pl., 16th Am. ed., 411, 515; Mayne on Damages, chap. 17; Heard's Civil Pl. 310-314. For this and other errors the judgment was reversed. All the judges concurred except BRADLEY, J., dissenting.



New York Supreme Court, First Department, General Term, December, 1889.

(Reported in 25 Abb. N. C., 191.)

1. A complaint for damages for personal injuries occasioned by the negligence and carelessness of defendant in failing to keep a sidewalk in safe and proper condition, will not sustain a recovery on the ground that defendant unlawfully interfered with the previous condition of such sidewalk, rendering it unsafe and a public nuisance.*

2. An amendment changing a complaint for negligence to one for the creation of a nuisance, entirely changes the ground of action, and will not be allowed on the trial, nor subsequently upon the argument of an appeal.

Re-argument of an appeal by defendant from a judgment in favor of plaintiff entered upon a verdict.

DANIELS, J. The appeal in this action has already been heard and decided by this General Term, but upon an application made by the defendant a re-argument has been ordered. This direction for the re-hearing of the appeal proceeded to some 2 extent upon the case of Wasson v. Pettit, 49 Hun, 166. The appeal has been again argued pursuant to this direction, and the point taken in support of it has now been made mainly dependent upon the construction to be placed upon the complaint in the action.

*As to stating same injury in several forms as separate causes of action, see 24 Abb. N. C., 326.

Fisher v. Rankin, 25 Abb. N. C., 191.

It was for a personal injury sustained by the plaintiff in falling 3 upon the sidewalk on Forty-eighth street in front of premises owned by the defendant. This walk had been excavated to receive a concrete filling, and then to be covered by an asphalt or other smooth surface.

The plaintiff was passing along the walk on July 15, 1884, and stepped upon that which had been excavated, and upon which a rough surface of cinders, ashes and broken stone had been placed. In endeavoring to pass along this part of the walk she fell and received severe injuries. The court in submitting the case to the jury placed the plaintiff's right to maintain the action wholly upon the question whether, under the defendant's authority or employment, an unlawful excavation had been made in the sidewalk rendering it unsafe for use and substantially a public nuisance. Her right to maintain the action was in no respect made dependent upon the finding of fact by the jury that the defendant was chargeable with negligence for the condition in which this part of the walk had been placed. Upon that subject the charge was that it was not a case in which the jury could take into account the subject of negligence at all; but 5 that it depended upon the unlawful interference of the defendant with the previous condition of the walk. The defendant excepted to the submission of the case in this form to the jury, and claimed that without amending the pleadings they could not proceed on that theory.

Whether this exception was well taken depends wholly upon the construction to be placed upon the complaint, for no statement or admission contained in the defendant's answer enlarged the scope of the action as the complaint had been made to describe it. By the complaint it was stated that the defendant was the owner of the premises where the injury took place, and that the plaintiff was lawfully passing along the sidewalk in front of the premises, and that while in the act of passing as aforesaid she stepped upon a flag-stone placed on said sidewalk, when the said stone suddenly gave way from under her feet, and the plaintiff was thereby violently precipitated to the ground. Then it is stated that from her fall she had received the injuries for which remuneration was demanded in the action. And after


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