Smith v. State

During the course of the trial claimant moved that the defense of contributory negligence on the part of the decedent be taken out of the case on the grounds that it was an affirmative defense which was not pleaded by the State. (Decedent Estate Law, §§ 119, 131.) Claimant relied on Dulinak v. State of New York (177 Misc. 372, affd. 262 App. Div. 1064).

Inasmuch as we have found in our accompanying decision that the claimant failed to prove by a fair preponderance of the credible evidence that the State was guilty of any negligence, causing or contributing to Smith’s accident, we did not reach…