
    Rachel A. Woolsey, Resp’t, v. The Trustees of the Village of Ellenville, App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 11, 1891.)
    
    1. Negligence—Municipal corporations.
    Plaintiff was injured by falling upon ice which had formed on the sidewalk of one of defendant’s streets. There was evidence to show that water had been collected in a surface drain which had no proper outlet and thus was discharged on the sidewalk. Eeld, that it was a proper question for the jury whether the ice was formed by that act of defendant, and whether it had constructive notice by lapse of time after the formation of the ice and before the accident.
    3. Same—Evidence—Married women.
    In an action by a married woman to recover for injuries caused by negligence, evidence that she was carrying on a separate business and that the profits thereof were hers is inadmissible in the absence of an allegation in the complaint that she had a separate business or of special damages on account of such business.
    (Landon, J., dissents.)
    
      Appeal from, a judgment entered upon the verdict of a jury at the Ulster circuit, and from an order denying a motion to set aside the verdict upon the minutes of the judge at the trial.
    The action was prosecuted for an alleged injury to the plaintiff from falling upon the sidewalk of the village of Ellenville, which the plaintiff claims was negligently permitted to be out of repair by the defendant, by reason of which the plaintiff was injured. The jury rendered a verdict in favor of the plaintiff for $5,000, on which judgment was rendered and the defendant appeals.
    
      A. T. Clearwater, for app’lts; John E. Van Etten, for resp’t.
   Mayham, J.

—The appellant insists that the learned trial judge erred in refusing to dismiss the complaint on motion of the defendant at the close of the plaintiff’s evidence at the trial, on the ground that plaintiff failed to prove facts sufficient to charge the defendant with negligence or constitute a cause of action against it

This presents the question whether, from all the evidence, there was sufficient to authorize the jury upon the most favorable construction for the plaintiff of which it was capable to find for her. In the very careful analysis of the evidence by the learned judge in deciding this motion, it seems clear that he disclosed a state of facts from the evidence which the jury might adopt in arriving at a verdict for the plaintiff. The theory of the plaintiff was, that the defendant, by the construction of a surface drain or ditch on the southerly side of Cross street, had conducted the water down to the sidewalk on the northerly side of Canal street, and without furnishing a sufficient way of escape under the sidewalk had caused or permitted the same to flow upon the flagging of that walk and thence down the same in a southwesterly direction to the point where the accident is alleged to have occurred and forming a coating of ice on which the plaintiff fell and was injured, and the judge in discussing and deciding the motion, said : “If the plaintiff can recover in this case, it must be upon the general ground that the village caused the water which it collected in this ditch to be discharged on this sidewalk by not providing a proper outlet; that the sidewalk was so fixed that the water could not escape from it” And he held, and we think properly, that it was a question for the jury to determine, whether the ice was produced by that act or by some agency for which the village would not be responsible.

But it is insisted by the defendant that within the doctrine laid down by the court of appeals in Harrington v. The City of Buffalo, 121 N. Y., 147; 30 N. Y. State Rep., 719, the complaint should have been dismissed for want of proof of notice of the defective walk to the defendant, and a sufficient time after notice to remedy the defect. But this case does not seem to have established any new rule upon that subject. If the right to recover depended solely upon the question, whether or not the defendant by its affirmative act in collecting and giving direction to the surface water through this ditch caused the ice to form, then knowledge of that defect would be imputable to the defendant from its own act; but the court held that it was a question for the jury whether, under the evidence, the defendant had constructive notice by lapse of time, after the formation of the ice and before the accident, and we think it was a proper question for them.

The case discloses that the plaintiff, at the time of the injury and trial, was a married woman, having a living husband. The plaintiff was permitted to prove, under the objection of the defendant, that she was carrying on a separate business on her own account, and that the profits of the business were hers. There is no allegation in the complaint that the plaintiff had a separate business carried on on her own account, or any allegation of special damages on account of her separate business; and we think the admission of this evidence under the defendant's objection and exception was error. In the case of Sarah Uransky v. The Dry Dock, E. B. & Battery R. R. Co., 118 N.Y., 304; 28 N. Y. State Rep., 711, this direct question was raised, and, as it appears to us, definitely settled by the second division of the court of appeals.

In that case, as in this, the action was by a married woman. In that case, as in this, the complaint contained no allegation of special damage, or that the plaintiff was carrying on a separate business ; and Parker, J., in delivering the opinion of the court, uses this language: “ 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; and if she seeks to recover damages for the 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 objections of the defendant that the evidence was'.irrelevant and immaterial and called for damages not alleged in the complaint, that she was engaged in the dressmaking business; this was error.”

It seems quite impossible, upon principle, to distinguish that case from the one at bar. It is true that the learned judge used this language: “ The evidence is clearly admissible as descriptive of her condition, and for no other purpose.” But I cannot see that that in any way relieves it from the error of its admission, especially as the learned judge, in denying the motion to strike out this evidence, said: “Nothing is better settled than the fact that a married woman can carry on her own business separately from her husband. I overrule the objection.”

"We think the objection to this evidence was well taken; as was the exception to its admission; and as the court on review cannot see that it did not affect injuriously the rights of the defendant, we cannot disregard the error.

As this error makes a new trial necessary, an examination of the other exceptions of the defendant is not profitable.

The judgment is reversed and a new trial ordered, costs to abide the event

Learned, P. J., concurs; Landon, J., dissents.  