Clark v. Dillon
New York Court of Common Pleas
Appeal from a judgment of this court entered upon the verdict of a jury. The complaint alleged the making of an excavation by defendants at the intersection of Fourth Avenue and Sixty-third Street, their partnership, that the place was left unguarded, and that plaintiff’s wife, while lawfully passing along the street, fell down the embankment made by the excavation, and was injured, to plaintiff’s damage $10,000. The answer averred contributory negligence by the wife, and a…
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Appeal from a judgment of this court entered upon the verdict of a jury. The complaint alleged the making of an excavation by defendants at the intersection of Fourth Avenue and Sixty-third Street, their partnership, that the place was left unguarded, and that plaintiff’s wife, while lawfully passing along the street, fell down the embankment made by the excavation, and was injured, to plaintiff’s damage $10,000. The answer averred contributory negligence by the wife, and a settlement with her, wherein plaintiff waived any claim. The copartnership was admitted, and a denial set forth in these…
1Opinion of the CourtBeach, J.
[After stating the facts as above.]—The defendants’ counsel asked the trial court to charge the jury that, before the plaintiff could recover, they must determine the defendants made the excavation as matter of fact. No direct evidence was given of the fact. The learned judge held there was no denial of the allegations upon the subject in the complaint. The sufficiency of the pleading to raise such an issue.is the question presented by this appeal.
An answer must contain a general or specific denial of each material allegation of the complaint controverted by the defendant (Code Civ. Pro., §…
2Cases cited3 opinions
- Clark v. . DillonNew York Court of Appeals · 1884
- Hammond v. EarleNew York Supreme Court · 1878
- Miller v. McCloskeyNew York Supreme Court · 1881
3Cited by1 opinion
- Manner v. SimpsonNew York Court of Common Pleas · 1885