Squier v. Gould

New York Supreme Court

Squier v. Gould

14 Wend. 159

CourtNew York Supreme Court

DecidedJuly 15, 1835

StatusPublished

Cited by29 cases

This text of 14 Wend. 159 (Squier v. Gould) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Squier v. Gould, 14 Wend. 159 (N.Y. Super. Ct. 1835).

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Opinion

By the Court,

Sutherland, J.

Thé common pleas must have reversed the judgment, on the ground’ that the evidence did not prove the special damage laid in the declaration, and that a portion of the evidence upon that point was1 inadmissible under the declaration, as it went to show special damage to the plaintiff for which he had not declared. Where the damages actually sustained do not necessarily arise from the act complained of, and consequently are not implied by law, in order to prevent surprise to- the defendant, the plaintiff must state in his declaration the particular damage which he has sustained, or he will not be permitted to give evidence of it upon the trial. This is the rule laid down by Mr. Chitty, Chitty’s Pl. 385, 6,7,8; and he there-refers to a great variety of cases to illustrate and support it. 8 T. R. 133. Peake’s N. P. C. 46, 62. 9 Coke, 113, a. 1 Saund. 346, a. b., n. 2. 2 East, 154. 1 Saund. 243, n. 5. Viner’s Abr. Ev. tit. b. 6. See also 9 Wendell, 325. The-doctrine is unquestionable.

The evidence in relation to the injury sustained by the tenant, and also in relation to the loss of customers at the store in consequence of the obstruction of the road, was-clearly inadmissible. There is no claim for damages in. the declaration, for the loss of customers •, and the damage" sustained by the tenant, the plaintiff certainly had no-right to sue for, and did not pretend in his declaration to claim. No connection in the business of the store is-shown to have existed between the plaintiff and the tenant. The loss of Van Allen as a tenant, and the consequent loss of the rent of the store, ought to have been specially alleged, in order to entitle the plaintiff to have proved them as damages. The fair construction of the declaration is,, that the plaintiff himself occupied the store, and that Ms-goods were injured by the dust and dirt occasioned by the sand and lime deposited by the defendant, and the access to [161]*161his store was prevented by these obstructions. The evidence, on the contrary, shows that the store was occupied by a tenant; and there is not a particle of testimony that. the plaintiff had any interest in the goods contained in it. I have no doubt the plaintiff has been injured by the defendant; but upon the pleadings and proofs as they stand, I think the judgment of the justice was properly reversed by the common pleas.

Judgment affirmed.

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By the Court,

Sutherland, J.

Thé common pleas must have reversed the judgment, on the ground’ that the evidence did not prove the special damage laid in the declaration, and that a portion of the evidence upon that point was1 inadmissible under the declaration, as it went to show special damage to the plaintiff for which he had not declared. Where the damages actually sustained do not necessarily arise from the act complained of, and consequently are not implied by law, in order to prevent surprise to- the defendant, the plaintiff must state in his declaration the particular damage which he has sustained, or he will not be permitted to give evidence of it upon the trial. This is the rule laid down by Mr. Chitty, Chitty’s Pl. 385, 6,7,8; and he there-refers to a great variety of cases to illustrate and support it. 8 T. R. 133. Peake’s N. P. C. 46, 62. 9 Coke, 113, a. 1 Saund. 346, a. b., n. 2. 2 East, 154. 1 Saund. 243, n. 5. Viner’s Abr. Ev. tit. b. 6. See also 9 Wendell, 325. The-doctrine is unquestionable.

The evidence in relation to the injury sustained by the tenant, and also in relation to the loss of customers at the store in consequence of the obstruction of the road, was-clearly inadmissible. There is no claim for damages in. the declaration, for the loss of customers •, and the damage" sustained by the tenant, the plaintiff certainly had no-right to sue for, and did not pretend in his declaration to claim. No connection in the business of the store is-shown to have existed between the plaintiff and the tenant. The loss of Van Allen as a tenant, and the consequent loss of the rent of the store, ought to have been specially alleged, in order to entitle the plaintiff to have proved them as damages. The fair construction of the declaration is,, that the plaintiff himself occupied the store, and that Ms-goods were injured by the dust and dirt occasioned by the sand and lime deposited by the defendant, and the access to [161]*161his store was prevented by these obstructions. The evidence, on the contrary, shows that the store was occupied by a tenant; and there is not a particle of testimony that. the plaintiff had any interest in the goods contained in it. I have no doubt the plaintiff has been injured by the defendant; but upon the pleadings and proofs as they stand, I think the judgment of the justice was properly reversed by the common pleas.

Judgment affirmed.

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14 Wend. 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/squier-v-gould-nysupct-1835.

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