Solms v. Lias

16 Abb. Pr. 311 | New York Court of Common Pleas | 1863

By the Court.—Brady, J.

The complaint in . this case is based upon injuries to the realty. There are no allegations of damage to personal property resulting from such injury, or of any expense to which the plaintiff was subjected in consequence, except that of constructing a wall to prevent further damage. The plaintiff was, however, permitted to prove the loss of beer, and the expense of pumping a well on his premises, the contents of which it became necessary to remove in consequence of the inflowing from the defendant’s privy. This evidence was objected to, on the ground that no notice had been served on the defendant’s' attorney specifying either of these items as points on which the plaintiff would be examined as a witness on his own behalf. If the objection had been taken to the inadmissibility of the evidence because there were no allegations of special damage, then there seems to me to be no doubt that it should have been excluded; and as the notice served contained a general reference only to the damages sustained,—viz., “as to the amount of damages sustained by the plaintiff,”—it must be held to relate only to the damages which the plaintiff had so averred in his complaint that he had the right to prove them. It cannot be said that, considering the whole of the case, the defendant was not damnified by the proof admitted. It can "be said, with propriety, that the plaintiff’s testimony is not consistent as to the precise time when the beer was spoiled. He states that after the wall or embankment was built on his ground the water in the well was pure and sweet, and that the beer was made before the wall was built; and, at another point in his evidence, says that the wall was built before he made the beer. The plaintiff is a foreigner, it is true, and it may be that ignorance of our language had led him into inconsistent statements, and it may also be that on another trial he may present his case more satisfactorily. The admission of the evidence objected to, however, renders it necessary to reverse the judgment.

Halt, F. J., and Hilton, J., concurred.

Judgment reversed, and new trial ordered.