Mitchell v. Cody

26 N.Y.S. 781, 6 Misc. 307

• Court: The Superior Court of the City of New York and Buffalo
• Decided: December 29, 1893
• Status: Published

Opinion

FREEDMAN, J.

Upon the facts as found by the jury under an unexceptionable charge the direct causé of the' fall of plaintiff’s intestate was the blow struck by defendant, and the circumstance that the head of the deceased came into contact with the pavement upon which he fell was the natural and proximate result of the force wrongfully exerted by the defendant. Death having ensued therefrom, such death clearly was the natural and proximate result of defendant’s wrongful act; and the existence of the pavement cannot be treated as the intervention of a new agency which produced a consequence for which the defendant is not liable.

Defendant’s application at the trial for leave to withdraw a juror was not denied for want of power to grant it, and the ruling as made presents no ground for reversal.

The rulings of the trial judge denying defendant’s right to introduce special matter in justification or in mitigation were all proper under the pleadings. The answer contained only a general denial. Facts in justification or in mitigation of damage, directly and naturally flowing from the wrongful act complained of, must be pleaded if the defendant desires to prove them at the trial. Moreover, the defendant in the end substantially succeeded in introducing his proof in that respect. Upon the whole case no reason appears which calls for reversal. The judgment and order should be affirmed, with costs.