156 N.Y.S. 357 | N.Y. App. Div. | 1915
The plaintiff, injured through the negligence of a person or persons other than the defendant, sued the defendant to recover
The statute and the decisions of courts in Pennsylvania construing it were received in evidence despite the plaintiff’s objection, and to the ruling he excepted. At the close of the entire case the learned trial court dismissed the complaint on the merits, although there was a motion for the direction of a verdict for the defendant. While this disposition presents an error in form, we may, no objection having been made, correct the error by modification if the conclusion is sound. (Stumpf v. Hallahan, 101 App. Div. 383; affd., 185 N. Y. 550; Niagara Fire Ins. Co. v. Campbell Stores, 101 App. Div. 400, 402.)
If the evidence to which we have adverted is receivable under the denial in the answer, á verdict should have been directed for the defendant. (Bigus v. Lehigh & Wilkesbarre Coal Co., 160 App. Div. 838.)
The plaintiff assigns as capital error the reception of the evidence because the defendant did not plead the statute as new matter constituting a defense. That course of pleading was unnecessary. The evidence is relevant to the issue raised by the denial. The plaintiff was bound to show that a relationship, upon the existence of which the defendant’s liability could be legally established, existed between the defendant and the person or persons actually negligent. The evidence received tended to disprove the essential fact of that relationship, and it was receivable under the issue formed by the denial. (Ontario Bank v. N. J. Steamboat Co., 59 N. Y. 510, 514.)
It is unnecessary to plead a foreign statute unless it is the
I advise that the judgment be modified by providing that it was entered upon the direction of a verdict, and as so modified affirmed, with costs.
Present—Jenks, P. J., Carr, Stapleton, Mills and Rich, JJ.
Judgment modified by providing that it was entered upon the direction of a verdict, and as so modified unanimously affirmed, with costs.