Pier v. Finch

29 Barb. 170, 1859 N.Y. App. Div. LEXIS 173

Opinion

By the Court, Welles, J.

The only question in this case worthy of consideration, arises upon the offer of the defendants to give certain evidence, and the decision of the circuit judge thereon, excepting what was disposed of in the plaintiff’s favor when this case was before us on a former occasion, on a motion to set aside the nonsuit, as above stated.

The offer of evidence, the overruling of which is now the principal subject of complaint, was to show certain regulations of the Sew York and Erie Eail Eoad Company; that such regulations were reasonable, and that the acts of the defendants, which constituted the assault and battery complained of, were done in conformity with such regulations; it having appeared that the defendant Finch was, at the time the transaction took place, a conductor of the train from which the plaintiff was ejected, and the other defendants were hands on the train, acting under the directions of Finch. The case shows that the plaintiff's counsel objected to the offer on nine several specific grounds, the second of which was that the evidence was not admissible under the pleadings.

[Monroe General Term, March 7, 1859.

Welles, Smith and Johnson, Justices.]

The matter embraced in the offer, if true, and if admissible at all, could only be received as a defense to the action. If the regulations of the rail road company were of any materiality in the case, it was to show that the defendants were justified in removing the plaintiff from the train, provided they acted in conformity with the regulations, and thus to entitle them to a verdict in their favor.

This, most" clearly, could not be allowed unless the same had been set up in the answer, which it is not contended was done. (McKyring v. Bull, 16 N. Y. R. 297.)

The judgment should therefore be affirmed.