Ford v. Monroe
New York Supreme Court
This was an action on the case, tried at the Saratoga circuit in May, 1833, before the Hon. Esek Cowen, then one of the circuit judges. The declaration charged, that by the negligence of a servant of the defendant in driving a gig, a son of the plaintiff of the age of about ten years, was run over and killed.
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This was an action on the case, tried at the Saratoga circuit in May, 1833, before the Hon. Esek Cowen, then one of the circuit judges. The declaration charged, that by the negligence of a servant of the defendant in driving a gig, a son of the plaintiff of the age of about ten years, was run over and killed. In one of the counts it was alleged, by way of special damage, that in consequence of the occurrence, the wife of the plaintiff became sick, and remained so for a long time, and that the plaintiff was not only deprived of her society, but was subjected to great expense in attendance upon…
1Opinion of the Court
By the Court, Nelson, Ch. J.
The main ground urged in support of the application for a new trial is, that the proof failed to establish that the servant was acting in the business of the master, or within the scope of his authority. The answer to which is that the point was not made upon the trial, neither in the motion for a non-suit or after the testimony had closed. The cause seems to have been tried and defended upon the assumption of the existence of the relation of master and servant between the defendant and the person driving the carriage. Had the objection been taken, more full proof…
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