
    Matt Nauyalis, Appellant, v. Philadelphia and Reading Coal and Iron Company, Respondent.
    Second Department,
    December 24, 1915.
    Master and servant — negligence—pleading — statute of foreign State governing liability of mine owners — evidence — when proof of statute admissible under general denial — appeal —modification of judgment.
    Where a defendant was entitled to a direction of a verdict in its favor instead of a dismissal of the complaint upon the merits, the Appellate Division may correct the error by a modification of the judgment where no objection thereto is made.
    In an action against a mine owner brought by a miner to recover damages for personal injuries received in a foreign State the defendant may, under a general denial of liability under the doctrine of respondeat superior, prove a statute of the foreign State which exempts a mine owner from liability for the acts of a mine foreman employed by it. It is not necessary that the defendant plead the foreign statute.
    Appeal by the “plaintiff, Matt Nauyalis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 29th day of January, 1915, upon a dismissal of the complaint on the merits by direction of the court at the close of the case.
    
      John C. Hollenback [Charles Goldzier with him on the brief], for the appellant.
    
      Pierre M. Brown, for the respondent.
   Stapleton, J.:

The plaintiff, injured through the negligence of a person or persons other than the defendant, sued the defendant to recover damages. He places the defendant’s liability upon the common-law doctrine of respondeat superior. The defendant pleaded a denial of the facts alleged to bring the case within that doctrine. It proved, by the uncontradicted evidence of a witness whose credibility presented no question of fact, that the mine in which the plaintiff was working’ and all of the persons whose acts or omissions are alleged to have caused his injury, were under the control of a mine foreman acting under a statute of the State of Pennsylvania (Act of June 2, 1891, Pennsylvania Laws of 1891, p. 176, No. 177), commonly known as the Anthracite Mining Law of Pennsylvania, and the acts amendatory thereof and supplemental thereto.

The statute and the decisions of courts in Pennsylvania construing it were received in evidence despite the plaintiff’s objection, and to the ruling he excepted. At the close of the entire case the learned trial court dismissed the complaint on the merits, although there was a motion for the direction of a verdict for the defendant. While this disposition presents an error in form, we may, no objection having been made, correct the error by modification if the conclusion is sound. (Stumpf v. Hallahan, 101 App. Div. 383; affd., 185 N. Y. 550; Niagara Fire Ins. Co. v. Campbell Stores, 101 App. Div. 400, 402.)

If the evidence to which we have adverted is receivable under the denial in the answer, á verdict should have been directed for the defendant. (Bigus v. Lehigh & Wilkesbarre Coal Co., 160 App. Div. 838.)

The plaintiff assigns as capital error the reception of the evidence because the defendant did not plead the statute as new matter constituting a defense. That course of pleading was unnecessary. The evidence is relevant to the issue raised by the denial. The plaintiff was bound to show that a relationship, upon the existence of which the defendant’s liability could be legally established, existed between the defendant and the person or persons actually negligent. The evidence received tended to disprove the essential fact of that relationship, and it was receivable under the issue formed by the denial. (Ontario Bank v. N. J. Steamboat Co., 59 N. Y. 510, 514.)

It is unnecessary to plead a foreign statute unless it is the foundation of a liability or a defense. (Archer v. N. Y., N. H. & H. R. R. Co., 106 N. Y. 589, 602; Cutler v. Wright, 22 id. 472, 474; Berry v. Urban Water Supply Co., 163 App. Div. 21.)

I advise that the judgment be modified by providing that it was entered upon the direction of a verdict, and as so modified affirmed, with costs.

Present—Jenks, P. J., Carr, Stapleton, Mills and Rich, JJ.

Judgment modified by providing that it was entered upon the direction of a verdict, and as so modified unanimously affirmed, with costs.  