Hynds v. Brooklyn Heights Railroad

111 A.D. 339, 97 N.Y.S. 705, 1906 N.Y. App. Div. LEXIS 161

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 1906
• Status: Published

Opinions

Gaynor, J.:

The complaint lacks precision, but in its bungling way (which we have to overlook in pleadings nowadays) it alleges that the .plaintiff was struck in the abdomen and bruised, blackened and injured there, and internally. The plaintiff described the severe pains she suffered in the abdomen from the time of the accident and eruptions like blisters that came out on her abdomen. These latter were objected to as not pleaded. Enough was pleaded to cover all pains, discolorations, swellings and eruptions or blisters of the abdomen. That the doctors gave such eruptions and blisters a scientific name and said they were caused by the abdominal pain did not make proof of ' them erroneous on the ground they were not within the issue. They- . were necessarily mentioned in describing the progress and development of. the hurt to the abdomen. , .

The judgment should be affirmed.

Woodward and Jenks, JJ., concurred; Hooker, J., read for reversal, with whom Hirschberg, P. J., concurred.