
    Mitchell, Administratrix, v. Cody.
    (New York Superior Court—General Term,
    December, 1893.)
    In an action to recover damages for the death of plaintiffs intestate it appeared that he was struck by defendant so that he fell, striking his head upon the pavement and died from the effect of the injuries so received. Held, that his death was the natural and proximate result of defendant’s wrongful act, and the existence of the pavement could not be treated as the intervention of a new agency which produced a consequence for which the defendant was not liable.
    Pacts in justification or in mitigation of damages directly and naturally flowing from the wrongful act complained of must be pleaded if the defendant desifes to prove them on the trial.
    Appeal from judgment entered in favor of the plaintiff, upon the verdict of a jury, and from order denying defendant’s motion for a new trial.
    
      Charles Steckler, for plaintiff (respondent).
    
      James A. Gray, for defendant (appellant).
   Freedman, J.

Upon the facts as found by the jury under ■an unexceptionable charge the direct cause of the fall of plaintiff’s intestate was the blow struck by defendant, and the circumstance that the head of the deceased came into contact with the pavement upon which he fell was the natural •and proximate result of the force wrongfully exerted by the defendant. Death having ensued therefrom, such death clearly was the natural and proximate result of defendant’s wrongful act, and the existence of the pavement cannot be treated as the intervention of a new agency which produced a ■consequence for which the defendant is not liable.

Defendant’s application at the trial for leave to withdraw a juror was not denied for want of power to grant it, and the puling as made presents no ground for reversal.

The rulings of the trial judge denying defendant’s right to introduce special matter in justification or in mitigation were all proper under the pleadings. The answer contained only a general denial. Facts in justification or in mitigation of damage directly and naturally flowing from the wrongful act: complained of must be pleaded if the defendant desires to. prove them at the trial. Moreover, the defendant in the end substantially succeeded in introducing his proof in that respect.

Upon the whole case no reason appears which calls for reversal.

The judgment and order should be affirmed, with costs.

McAdam, J., concurs.

Judgment and order affirmed, with costs.  