
    WALLACE v. NEW YORK CITY RY. CO.
    (Supreme Court, Appellate Term.
    March 3, 1905.)
    Pebsonal Injuries—Pleading and Evidence.
    Admission of evidence in a personal injury case that certain injuries were permanent is error, where such fact is not pleaded.
    Appeal from Municipal Court, Borough of Manhattan, Seventh District.
    Action by William Wallace against the New York City Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition of remittitur.
    Argued before SCOTT, GIEGERICH, and McCALL, JJ.
    
      William E. Weaver, for appellant.
    Ernest M. Welch, for respondent.
   SCOTT, J.

The defendant in ■ this case admitted its liability, and the only question to be determined was as to the amount of damages. The justice erroneously admitted evidence tending to show that certain injuries suffered by plaintiff were permanent, although that fact was not pleaded. We are bound to assume that the evidence thus erroneously admitted enhanced the verdict to some extent, although, of course, we cannot tell precisely by how much.

We think that the judgment must be reversed, and a new trial granted, with costs to appellant to abide the event, unless the plaintiff will stipulate to reduce the judgment to $226.50, in which case the judgment as modified will be affirmed, without costs. If plaintiff is willing to accept a judgment for damages as thus reduced, the defendant should be satisfied to be charged no more for its admitted liability.

GIEGERICH, J.

(concurring). The evidence, aside from any testimony as to the permanency of the injuries, certainly shows damage to the amount proposed to be allowed. If a less sum had been awarded by the jury, it would have been our duty to reverse because of the inadequacy of judgment. Hence the defendant has no ground of complaint against the modification. As to the plaintiff, if he feels the amount allowed is too small, he can refuse to accept it, and have a new trial.

McCALL, J., concurs in the result.  