Byron v. New York State Printing Telegraph Co.

26 Barb. 39, 1857 N.Y. App. Div. LEXIS 205

Opinion

By the Oourt, Mitchell, P. J.

In Keegan v. The Western Rail Road Company, (4 Seld. 175,) the complaint is very similar to this, and 'judgment for the plaintiff was affirmed. Admitted knowledge in the defendants, of the defect in the engine, was not expressly stated there, but proof of such knowledge was received, under a complaint alleging negligence in the defendants. If that complaint had been defective, judgment upon it should not have been affirmed. It is true, the point Was not raised, whether, under such a complaint, proof of knowledge by the defendants, of the defect in the engine, could be given. But the counsel for the company would hardly have omitted such a point, if they had deemed it tenable.

[New York General Term, November 2, 1857,

In this case the allegation of negligence would be sustained by proving the danger from the defect in the pole, in this case, and that it was known to the defendants. For this reason, the demurrer should be overruled, with leave to the defendants to amend, on payment of costs of the demurrer.

Order affirmed.

Mitchell, Roosevelt and Peabody, Justices.]