Uransky v. Dock

• Decision Date: 14 January 1890
• Citation: 118 N.Y. 304,23 N.E. 451
• Parties: URANSKY v. DRY DOCK, E. B. & B. R. CO.
• Court: New York Court of Appeals Court of Appeals

118 N.Y. 304

23 N.E. 451

URANSKY

v.DRY DOCK, E. B. & B. R. CO.¹

Court of Appeals of New York, Second Division.

Jan. 14, 1890.

Appeal from supreme court, general term, first department.

Action for personal injuries by Sarah Uransky against the Dry-Dock, East Broadway & Battery Railroad Company. A judgment for plaintiff was affirmed by the general term of the supreme court, and defendant appeals.

John M. Scribner, for appellant.

Louis Z. Kinstler, for respondent.

PARKER, J.

The recovery had was for damages sustained by the plaintiff, a married woman, by reason of personal injuries received while a passenger on defendant's road. Presumptively, damages for negligently diminishing the earning capacity of a married woman belong to her husband, and when she seeks to recover such damages the complaint must contain an allegation that for some reason she is entitled to the fruits of her own labor; or, if she seeks to recover damages for an injury to her business, she must allege that she was engaged in business on her own account, and by reason of the injury was injured therein as specifically set forth. No such allegations are contained in the complaint in this action. Nevertheless the plaintiff was permitted to prove, against the objection of the defendant, that the evidence was irrelevant and immaterial, and called for special damages not alleged in the complaint; that she was engaged in the dressmaking business; sold fancy goods and dry goods; was accustomed to make from $16 to $20 per week; and that because of her injuries was prevented from working for two months. This was error. Gumb v. Railroad Co., 114 N. Y. 411, 21 N. E. Rep. 993; Saffer v. Railroad Co., 5 N. Y. Supp. 700. The respondent, in support of the ruling, cited Hartel v. Holland, 19 Wkly. Dig. 312, and Ehrgott v. Mayor, etc., 96 N. Y. 275. But the question here presented, involving the right to recover damages which the law does not presume to be the immediate and natural consequences of the injury, in the absence of a special averment of such damages, does not appear to have been raised or passed upon in either case. Therefore they do not support the respondent's contention. As the exception taken to the ruling of the court referred to calls for a reversal of the judgment, it is unnecessary to consider the other exceptions taken. The judgment should be reversed. All concur, except HAIGHT, J., not voting.

1 Reversing 44 Hun, 119, mem.