Horan v. Hastorf
| Decision Date | 28 May 1918 |
| Parties | HORAN v. HASTORF. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by Katherine Horan, administratrix of Michael Horan, deceased, against Albert H. Hastorf. From a judgment of the Appellate Division (178 App. Div. 888,164 N. Y. Supp. 1096) affirming a judgment of the Trial Term on a verdict for plaintiff, defendant appeals. Reversed, and complaint dismissed.
Stephen P. Anderton, of New York City, for appellant.
David Steckler, of New York City, for respondent.
This is an action to recover damages for death alleged to have been caused by defendant's negligence. The complaint alleges, in substance, that defendant had a license or permit from the city of New York to use and occupy the inshore or most easterly dump on the northerly side of the pier at the foot of West Thirtieth street, Manhattan, together with the right to the use of the ramp or approach thereat and thereto; that by the terms of such license or permit he agreed to keep in repair the superstructure of said wharf property, including the said ramp and approach; that he permitted contractors, stevedores, and trucking men to use the wharf to discharge and receive grabage and other things upon and from boats; that plaintiff's intestate was employed by a corporation which had the privilege of using the dump and the ramp or approach thereto; that defendant allowed the ramp to become out of repair and in a dangerous condition; that while plaintiff's intestate was driving a loaded truck over the ramp to empty the same at the dump, a wheel of his truck went into a hole, and plaintiff's intestate was jolted off, receiving injuries from which he died. The answer in terms admits that defendant agreed to keep the ramp in good order.
[1][2][3][4] On the trial plaintiff offered the permit in evidence, and it was received without objection. By its terms it appears defendant had a permit to use and occupy ‘all that certain public wharf property * * * to wit, the inshore or most easterly dump at the northerly side of the pier * * * together with the right to use the ramp of approach thereat’; also that defendant agreed to keep in good repair ‘the superstructure of said wharf property,’ i. e., the superstructure of the dump. Nothing contained in the agreement imposed upon the defendant the duty of keeping the ramp in repair. Thus plaintiff interjected into the trial a discrepancy between the allegations of her complaint and her proof, which would tend to defeat her entire cause of action, were it not for the admission in the answer, for the complaint charges defendant with no duty to keep the ramp in repair except ‘under said license or permit.’ But, for the purposes of the action, the allegations of the complaint admitted by the answer must be taken as true. Code Civ. Proc. § 522. Plaintiff did not waive the admission by going, unnecessarily and unwisely, into the proofs. Such admissions are conclusive, and evidence inconsistent therewith must be disregarded. Jones v. Morehead, 1 Wall. (68 U. S.) 155, 165, 17 L. Ed. 662;Paige v. Willet, 38 N. Y. 28, 31;Tisdale v. President, etc., D. & H. Co., 116 N. Y. 416, 419,22 N. E. 700;Pennacchio v. Greco, 107 App. Div. 225, 227,94 N. Y. Supp. 1061. Plaintiff did not consent to try the issues upon the evidence rather than upon the pleadings. Obviously nothing was more remote from her intention. The inconsistency between plaintiff's evidence and the defendant's admission was not a variance, material or immaterial, which could be corrected on the defendant's motion under the Code of Civil Procedure (sections 539, 540). Such variances arise between a party's allegations and the proofs offered by him to establish such allegations, and he seeks to conform the allegations to the proof. This is an inadvertent admission by the adverse party. The variance is between the defendant's admission and the plaintiff's proofs. Defendant's remedy was to seek relief therefrom by obtaining leave to amend his answer. His motion therefor was denied. As he had no strict legal right to make such amendment on the trial, the exception to the ruling of the court presents no question of law. He is the victim of his failure correctly to understand the duty assumed by him and to require the plaintiff to prove her case.
[5][6] The next question is whether the evidence tended to show that the ramp was not in a reasonably safe condition for the use of plaintiff's intestate and others. The structure was 125 feet long and 19 feet wide. It was built on an incline so that the top was 10 to 12 feet from the ground. It was floored with spruce planks,...
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