Riley v. Metropolitan Street Railway Co.

Full title: SUSIE RILEY, Respondent, v . THE METROPOLITAN STREET RAILWAY COMPANY…

Court: Supreme Court, Appellate Term

Date published: Oct 1, 1901

36 Misc. 789 (N.Y. App. Term 1901)

Opinion

October, 1901.

G. Glenn Worden, for appellant.

E.H. Ball, for respondent.

GILDERSLEEVE, J.

This is an appeal from a judgment of the Municipal Court, for the sum of $200 damages and costs, in favor of the plaintiff, for personal injuries. The pleadings were oral. The answer was a general denial. The judgment is assailed by the defendant upon two grounds, viz.: (1) That there is no evidence of the defendant's incorporation, and (2) That there is no evidence that the defendant operated, managed, controlled, or was in any way connected with, the car upon which the plaintiff claims to have been injured.

The evidence shows that the plaintiff was injured while alighting from a street car on the Eighth Avenue Railroad, near Forty-fourth street, in the borough of Manhattan. At the close of the plaintiff's case, the defendant's counsel moved to dismiss the complaint upon the grounds, among others, that the plaintiff had failed to show that the defendant in this action was a corporation, and, further, that the plaintiff had failed to show that the defendant was operating or controlling the line of railroad upon which the car in question was running at the time of the accident. The motion was denied, and the defendant excepted. The defendant rested its case without introducing any evidence, and renewed the motion to dismiss, which was again denied and an exception taken.

The denial by the defendant, in its answer, was general and not specific, and, therefore, insufficient to require proof on the part of the plaintiff of defendant's corporate character. Code Civ. Pro., § 1776; T.A. Vulcan v. Myers, 34 N.Y. St. Repr. 122. We think, however, that the second ground, urged by defendant for a dismissal of the complaint was well taken. There is no evidence in the case to connect the defendant, the Metropolitan Street Railway Company, with the operation or control of the car upon which plaintiff was injured. This defect was specifically pointed out in the motion to dismiss, and no attempt was made to supply the necessary proof. It must be said therefore that the exception to the denial of the motion to dismiss on this ground was well taken.

The judgment must be reversed and a new trial ordered with costs to the appellant to abide the event.

FREEDMAN, P.J., and McADAM, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.