Bradner v. . Faulkner
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made at the October term, 1882, which affirmed an order of Special Term striking out as irrelevant certain portions of defendant’s answer herein. The complaint in this action contained two counts.
Read the full summary
Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made at the October term, 1882, which affirmed an order of Special Term striking out as irrelevant certain portions of defendant’s answer herein. The complaint in this action contained two counts. The first for false imprisonment, the second malicious prosecution, both growing out of the same transaction — that is, the procuring the arrest and imprisonment of plaintiff under a warrant of attachment in proceedings to punish Mm for contempt in disobeying a subpoena issued by defendant as chairman of…
1Opinion of the Court
Ruger, Ch. J.
It is provided by section 536 of the Code of Civil Procedure, that in an action to recover damages for a personal injury, “ the defendant may prove at the trial, facts, not amounting to a total defense, tending to mitigate or otherwise reduce the plaintiff’s damages, if they are set forth in the answer. ”
This section would seem to preclude the defendant from proving such circumstances, by way of mitigation only, as are not set forth in the pleadings. It is of the essence of mitigating circumstances that they do not constitute a total defense to the action, but are those facts…
2Cases cited1 opinion
- In Re the Application for an Attachment Against BradnerNew York Court of Appeals · 1881
3Cited by42 opinions
- Loeb v. TeitelbaumAppellate Division of the Supreme Court of the State of New York · 1980
- McClung v. WattCalifornia Supreme Court · 1922
- Sanders v. RolnickAppellate Terms of the Supreme Court of New York · 1947
- Dinkelspiel v. New York Evening Journal Publishing Co.Appellate Division of the Supreme Court of the State of New York · 1904
- Gamble v. KeyesSouth Dakota Supreme Court · 1915
37 more not listed; retrieve them via the Exa API.