21 Barb. 508 | N.Y. Sup. Ct. | 1856
It has always been customary, and was formerly deemed necessary, in an action founded upon a statute, to invoke it specially, in the declaration. It is well settled, however, that the courts .are bound to take notice of public statutes without their being specified in the pleading; and that it is only necessary to state facts which bring the case within the act. (1 Chit. on Pl. 218, and the cases referred to in note q.) The citation formerly required was therefore rather a matter of form than of substance. The code abolishes the pre-existing forms of pleading, (§ 140,) and so far as relates to the complaint requires only a plain and concise statement of the facts constituting a cause of action. The existence of a legal principle, whether of common law or founded upon a statute, cannot be deemed one of the essential facts which it is necessary to state. It was formerly held, too, that in an action founded upon a recent statute it was necessary to aver that the cause arose after the passage of the act. It seems to me that all that can be requisite, under our present liberal system of pleading, is to state in the complaint a time subsequent to the adoption of the statutory provision. That may be deemed prima facie the true time; and although the parties are not confined to that, yet if it should appear by the' evidence that the transaction occurred at too early a date, that would be a ground for a nonsuit. There does not now seem to be any sufficient reason for requiring any direct allusion to the statute, in the complaint.
It is still the rule, however, and should be, that the complaint should state all the facts which are requisite to bring the case within the statute. Without them, (conjunctively when all are required) when the right depends wholly upon the statute, there can be no valid cause of action. The act under which this suit was instituted (Laws of 1847, p. 575, § 1,) provides that the action may be maintained “ whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof,” and devolves the liability upon those who would have been responsible if the injured party had
•The difficulty in my mind has resulted from-that part of the charge of the learned judge to the jury where he instructed them that if the accident resulted from the insufficiency of the brew-house, or from its being overloaded with barley, the defendants were liable. Consistently with this the jury might have rendered a verdict for the plaintiff simply by reason of the original defective construction of the building, or from its being overloaded on account of such defect, although it might not have been known to them nor they guilty of negligence in not.detecting it, and they might have been free from any actual misconduct, The counsel for the defendants did not, however, except distinctly to this part of the charge, nor call the attention of the judge, particularly, to its objectionable feature. If that had been done, he might have qualified what he had said by instructing the jury that in order to throw any responsibility upon the defendants by reason of original defects in the construction of the building, it was necessary that it should appear either that they were known to the defendants, or‘would have been discovered by them, but for culpable inattention. There was much in the evidence to show that the deficiencies were so palpable that they must have been known to those who were constantly occupying and using the loft where they existed.. As the coun
The act of April 7,1849 (Laws of that year, p. 388, § 1) clearly authorized the personal representative of the deceased to maintain the action.
The damages found by the jury are large, and I should have been better satisfied with a verdict for a less amount; but the excess is not so great as to warrant the inference of any improper influence upon the minds of the jury, and therefore their verdict should stand.
Upon the whole, I have come to the conclusion, although with some hesitation, that the judgment should be affirmed.
Judgment affirmed.
Brown, S. B. Strong and Rockwell, Justices.]