Brisack v. King
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, L. Gerald King, from a, judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 6th day of May, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of August, 1921, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.
1Concurrence
John M. Kellogg, P. J. (concurring in result):
The plaintiff’s character is presumed to be good. If she relies upon the presumption, and makes no allegation of her character, I think if the defendant wishes to mitigate damages by proving her bad character that he must plead the mitigating circumstances under section 536 of the Code of Civil Procedure. I am not sure that compensatory damages cannot be mitigated. (Gressman v. Morning Journal Assn., 197 N. Y. 474, 480; Kiff v. Youmans, 86 id. 330.) But here the plaintiff has affirmatively alleged her good character, and under a general denial her…
2Cases cited2 opinions
- Gressman v. . Morning Journal Assn.New York Court of Appeals · 1910
- Lynch v. FiggeAppellate Division of the Supreme Court of the State of New York · 1920