
    Frank Kiers, Respondent, v. Jurgen Rathjen, Appellant.
    (Supreme Court, Appellate Term,
    July, 1908.)
    Negligence—Actions — Evidence—Admissibility — Under general denial — Proof that damage was caused by others.
    In an action to recover for damages done to plaintiff’s coal boat by the alleged negligent use of a “ digger ” employed by defendant’s employees in unloading the boat, the defendant under a general denial is entitled to prove that the damage complained of was caused by others for whose acts he was not responsible.
    
      Appeal by the defendant from a judgment, of the Municipal Court of the city of Yew York, first district, borough of Manhattan, rendered in favor of the plaintiff.
    James P. Conway, for appellant.
    Currier & Barnard, for respondent.
   Per Curiam.

The plaintiff, the owner of a coal boat, sued to recover for damage done to his boat. The plaintiff’s claim is that the boat was carrying a consignment of coal to the defendant and that the boat was damaged by the negligent use of the “ digger ” employed by the defendant in unloading his boat. The defendant pleaded a general denial. One of the issues raised by the pleadings related to whether or not the defendant’s employees unloaded the boat. The evidence of the plaintiff upon this point was indefinite and inconclusive. The defendant attempted to prove that the coal had been consigned to the Jurgen Rathjen Company and that its employees unloaded the boat. The trial court excluded this evidence upon the ground that these facts could not be proved under a general, denial. In this ruling the learned trial judge erred. The plaintiff’s contention being that the employees of the defendant caused the damage to his boat, it was competent for the defendant, under a general denial, to prove that the damage complained of was caused by others for whose acts the defendant was not responsible. Griffin v. Long Island R. R. Co., 101 N. Y. 348, 354; Demarest v. Flack, 128 id. 205.

The judgment appealed from is reversed and a new trial ordered, with costs to the appellant to abide the event.

Present — Gildersleeve, MacLean and Seabury, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  