Frenchi v. New York City Railway Co.

46 Misc. 612, 92 N.Y.S. 771

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 15, 1905
• Status: Published

Opinion

Blanchard, J.

These two actions grew out of the- same accident and were tried together. It was claimed on the trial that one of the defendant’s cars collided with a furniture van. The Frenchi action sought to recover damages to the contents of the van and the Campiglia action sought to recover damages to the van and team itself. The trial court found for the plaintiff in each case and the defendant appeals.

The appellant challenges the finding of the trial court on several grounds. It claims that its car did not strike the van at all and strives to explain the accident in other ways. There is abundant evidence in.the re'eord to satisfy the court that the. defendant’s car struck the van knocking it over and inflicting the injuries complained of, and that they were caused through the negligence of the defendant and without negligence on the part of the plaintiffs.

Upon his direct examination one of the plaintiff’s witnesses testified that prior to the accident “ the motorman or conductor of the car behind said ‘ shove the son-of-a-biteh.’ ” The defendant moved to strike out the words “ the motorman or conductor of the car behind.” The court struck them out, but allowed the rest to stand as a part of the res gestee.

We discover no evidence in this ruling of the court, nor do we see how the defendant was injured by it. An examination of the record will disclose that the court struck out all that the defendant asked to have struck out.

The appellant also claims that the Frenchi judgment is in excess of the jurisdiction of the court. The complaint, which was in writing, demanded judgment for $499. The bill of particulars contained a statement of damage amounting to $600. The bill of particulars did not extend the demand of the complaint, and the plaintiff had the right to waive the excess which he did by bringing the action for less than $500. When the-complaint is in writing, it is the complaint and not the bill of particulars which determines the jurisdiction.

The trial court in giving judgment for the sum of $499 damages, besides costs and allowances, committed no error.

The appellant’s counsel cites the case of Cohen v. Lewson, decided at the January Appellate Term of this court, as authority for his contention that the judgment is void because for a sum in excess of $500. He misapprehends the application of that decision. Upon a motion for a reargument at the February Appellate Term, the court handed down a further memorandum in that case, showing that the only statement of the amount of the plaintiff’s claim was contained in a bill of particulars. The return in the case from the Municipal Court did not contain the summons showing the amount of the claim.

The court, therefore, assumed that the action was brought for the sum stated in the bill of .particulars. That amount was in excess of $500. ' The court, therefore, concluded that the Municipal Court had no jurisdiction to entertain the action.

The judgment appealed from should be affirmed, with costs.

Scott and O’Gorman, JJ., concur.

Judgment affirmed, with costs.