Hollis v. Brooklyn Heights Railroad

121 A.D. 575, 106 N.Y.S. 197, 1907 N.Y. App. Div. LEXIS 1844

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 1907
• Status: Published

Opinion

Miller, J.:

The action is brought for personal injuries-alleged to have resulted from a nuisance, i. e., the wrongful maintenance of electric wires in'a public street. Evidence offered by the defendant to prove authority to maintain .said) wires in thp streets was excluded-upon the trial on the' ground that such authority was not pleaded in the answer, and upon the defendant’s request a juror was withdrawn ánd the case went over to enable it to move .for leave "to amend." Said motion was made, oh an . affidavit containing a "bare statement of the history of the cáse, without giving 'any'reason whatever for the failure to allege in the original.answer the facts, which the defendant desired to plead in the amended answer; hence the motion to amend was denied. -The. defendant has apparently taken this appeal for the purpose of getting an expression from this court respecting the correctness of the ruling of the trial judge, as it asks ' us to "affirm the order without, costs in ease we‘ agree with it that the order which it is appealing from" was properly made for the reason that .the amendment asked for was riot needed, and to reverse the order in case .we disagree with its contention. Unless , counsel thinks his client has. a grievance, he should not 'burden this court, as we do not entertain appeals for the purpose of giving instruction. .,'••/ •.

The order should be affirmed.

Hirschberg, P. J., Woodward, Gaynor and Rich, JJ., concurred.

Order affirmed, with ten. dollars costs and disbursements..