14 Wend. 159 | N.Y. Sup. Ct. | 1835
By the Court,
Thé common pleas must have reversed the judgment, on the ground’ that the evidence did not prove the special damage laid in the declaration, and that a portion of the evidence upon that point was1 inadmissible under the declaration, as it went to show special damage to the plaintiff for which he had not declared. Where the damages actually sustained do not necessarily arise from the act complained of, and consequently are not implied by law, in order to prevent surprise to- the defendant, the plaintiff must state in his declaration the particular damage which he has sustained, or he will not be permitted to give evidence of it upon the trial. This is the rule laid down by Mr. Chitty, Chitty’s Pl. 385, 6,7,8; and he there-refers to a great variety of cases to illustrate and support it. 8 T. R. 133. Peake’s N. P. C. 46, 62. 9 Coke, 113, a. 1 Saund. 346, a. b., n. 2. 2 East, 154. 1 Saund. 243, n. 5. Viner’s Abr. Ev. tit. b. 6. See also 9 Wendell, 325. The-doctrine is unquestionable.
The evidence in relation to the injury sustained by the tenant, and also in relation to the loss of customers at the store in consequence of the obstruction of the road, was-clearly inadmissible. There is no claim for damages in. the declaration, for the loss of customers •, and the damage" sustained by the tenant, the plaintiff certainly had no-right to sue for, and did not pretend in his declaration to claim. No connection in the business of the store is-shown to have existed between the plaintiff and the tenant. The loss of Van Allen as a tenant, and the consequent loss of the rent of the store, ought to have been specially alleged, in order to entitle the plaintiff to have proved them as damages. The fair construction of the declaration is,, that the plaintiff himself occupied the store, and that Ms-goods were injured by the dust and dirt occasioned by the sand and lime deposited by the defendant, and the access to
Judgment affirmed.
