Opinion
October, 1893.
Hirsh Rasquin, for plaintiff (respondent).
Tredwell Catlin, for defendants (appellants).
This action was brought to recover damages for injury to a horse, which resulted from negligence of the defendants. The allegation as to damages in the complaint, after amendment on the trial, was as follows: "That, by reason of the damages to said horse caused as aforesaid, and the trouble and expense incurred in consequence thereof, the plaintiff has been injured, in all, to his damage two hundred dollars." On the trial plaintiff gave the following answers to his counsel: "Did you have another horse, during the time this horse was ill, to do your work? A. Yes, sir. Q. How much did you pay for the use of the other horse? [Objected to, as irrelevant, immaterial and incompetent, and not within the issue; such damages should have been specifically set forth in the complaint. Objection overruled. Defendant excepts.]" We are of opinion that the foregoing exception was well taken, on the authority of Gumb v. Twenty-third Street Railroad Co., 114 N.Y. 411, 414. The damages sought to be proven were special, and should have been specifically set forth in the complaint. The "trouble and expense" mentioned in the complaint referred to only such trouble and expense as naturally followed from the injury. The allegation as to loss was general, and did not cover any claim for special damages.
Judgment and order denying new trial reversed, and new trial granted, with costs to appellant to abide the event.
VAN WYCK, J., concurs.
Judgment and order reversed and new trial granted.