
    Wilhelm Rubein, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Negligence—injury to a horse which is injured on an unfenced railroad—trial of an issue not presented by the pleadings — they will be treated as if amended.
    
    In an action brought against a railroad company to recover the value of a horse which was, as alleged; negligently and carelessly struck by one of the defendant’s cars while lawfully upon a public highway, the defendant, upon the-cross-examination of the plaintiff’s witnesses, brought out the -fact that the' railroad was not fenced, and the case was thereupon, without objection on the part of the plaintiff, litigated upon the issue as to the existence of the fence.
    
      Meld, that the defendant could not, upon an appeal from a judgment in favor of the plaintiff, contend that such issue was not within the pleadings because the action was not based upon the statute relating to the fencing of railroads (Laws of 1890, chap. 565, § 32), but that the court might, in support, of the judgment, treat the pleadings as if amended in conformity with the proof.
    The fact that the horse traveled for some distance before he gained the- street on ■ which the defendant’s railroad was operated, is not sufficient to defeat the right of action.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff rendered on the 16th day of November, 1900, upon the decision of the court.
    
      Sheehan, de Oollin and John I. Wells, for the appellant.
    
      Townes <& Mg Crossin and Van Burén Denslow, for the respondent.
   Jenks, J.:

This is an appeal from a judgment of the Municipal Court for the plaintiff, in an action for negligence tried without a jury. The plaintiff complained that while his horse was lawfully upon a public highway in the borough of Brooklyn, which was crossed by the defendant’s track, the defendant negligently and carelessly ran one of its cars, at a high rate of speed, into the horse and killed him. The plaintiff went into his yard to water his horse, the plaintiff and his son attempted to hitch the horse, but he jumped or dragged away, went over the fields, then down Second street to Henry street, thence through, vacant lots, and so gained the street. The absence of any fence was first brought out by the cross-examination of the motorman who was called by the plaintiff. Thereupon the case shifted, and the existence of a fence or its absence became the chief subject of contention. The defendant did not make any objection; on the contrary, it accepted this issue and fought it out. It moved for a dismissal on the merits at the close of plaintiff’s case, but it did not even renew the motion when all the evidence had been put in. It is now contended that the action was not based upon the. statute (Railroad Law, Laws of 1890, chap. 565, § 32), and that the variance between pleadings ■ and proof is too wide now to admit of amendment. I think that the defendant’s mouth is now closed. (Frear v. Sweet, 118 N. Y. 454; Farmers’ L. & T. Co. v. Housatonic R. R. Co., 152 id. 251.) This court may, in support of the judgment, treat the pleadings as if, amended in conformity with the proof. (Howell v. Grand Trunk R. Co., 92 Hun, 423.) I think that the statute applies to the locality in question. Crawford v. N. Y. C. & H. R. R. R. Co. (18 Hun, 108), with the authorities cited, is directly in point and is as applicable to the present statute as to that then up for construction. (Dayton v. N. Y., L. E. & W. R. R. Co., 81 Hun, 284.) The fact that the horse traveled for some distance before he gained the street is not enough to defeat the right of action. (Connolly v. Central Vermont R. R. Co., 4 App. Div. 221; Dayton v. N. Y., L. E. & W. R. R. Co., supra.)

The júdgment must be affirmed, with costs.

Judgment of the Municipal Court unanimously affirmed, with costs.  