
    Sarah Uransky, Resp’t, v. The Dry Dock, East Broadway & Battery Railroad Co., App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 14, 1890.)
    
    Negligence—Married woman—Damages—Evidence.
    Where a married, woman sues for damages sustained by reason of personal injuries received, she will not be permitted on the trial to prove that she was engaged in business, etc., and was prevented by the injuries from working, unless her complaint contained an allegation that for some reason she was entitled to the fruits of her own labor or was engaged in business on her own account.
    Appeal from a judgment of the general term of the supreme court, first department, affirming a judgment rendered at circuit in favor of the plaintiff.
    
      John M. Scribner, for app’lt; Louis Z. Kinstler, for resp’t.
    
      
       Reversing 7 N. Y. State Rep., 395.
    
   Parker, J.

The recovery had was for damages sustained by the plaintiff, a married woman, by reason of personal injuries received while a passenger on defendant’s road.

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; or, if she seeks to recover damages for an 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 objection of the defendant that the evidence was irrelevant and immaterial, and called for special damages not alleged in the complaint, that she was engaged in the dressmaking business; sold fancy goods and dry goods; was accustomed to make from sixteen dollars to twenty dollars per week; and that because of her injuries was prevented from working for two months.

This was error. Gumb v. Twenty-third St. R. R. Co., 114 N. Y., 411; 23 N. Y. State Rep., 748; Saffer v. D. D., E. B. & B. R. R. Co., 24 id., 210.

The respondent in support of the ruling cited Hartel v. Holland, 19 Weekly Digest, 312, and Ehrgott v. Mayor, etc., 96 N. Y., 275.

But the question here presented, involving the right to recover damages which the law does not presume to be the immediate and natural consequences of the injury in the absence of a special averment of such damages, does not appear to have been raised or passed upon in either case. Therefore, they do not support the respondent’s contention.

As the exception taken to the ruling of the court referred to calls for a reversal of the judgment, it is unnecessary to consider the other exceptions taken.

The judgment should be reversed.

All concur, except Haight, J., not voting.  