
    Max Brachfeld, Respondent, v. The Third Avenue Railroad Co., Appellant.
    (Supreme Court, Appellate Term,
    February, 1900.)
    negligence — Damages — Employment by injured person of substitute-must be specially pleaded.
    A person, whose complaint merely alleges that a collision incapacitated him from attending to his business, may testify that he had) to employ a substitute therein, as this bears upon bis incapacity, but he can recover no damages for such an expenditure where he has not specifically pleaded it.
    Where such an element of damage has not been specifically pleaded, the defendant is entitled to have the charge, made by the court to the jury, clearly eliminate it.
    Brachfeld v. Third Ave. R. R. Co., 29 Mise. Rep. 586, reversed.
    Appeal by the defendant from a determination of the General Term of the City Court, affirming a judgment of the Trial Term., rendered on the verdict of a jury.
    Hoadly, Lauterbach & Johnson (Leo J. Kersburg and Edgar M. Johnson, of counsel), for appellant.
    Joseph I. Green, for respondent.
   Leventritt, J.

The plaintiff recovered judgment for injuries

sustained in a collision between his wagon and one of the defendant’s cars. In his complaint, beyond an allegation. that he was “ incapacitated from attending to his business ”, he set out no-impairment of income, nor any allegation of expense incurred, except outlays for drugs and medical treatment. On his direct examination, he was permitted to testify that he was compelled to-employ a substitute in his business as a result of the injuries sustained. The court, in admitting the testimony, disposed of the objection urged against it by stating that it was admitted merely for the purpose of showing his incapacity. Were there nothing further in the case, the exception taken by the defendant would be unavailing, for although the employment of a substitute couldl not be made to support proof of damage in the absence of a specific allegation (Gumb v. Twenty-third Street R. Co., 114 N. Y-411), it was here admissible as a fact corroborative of the plaintiffs disability. But we are of the opinion that this limitation was* not preserved by the charge. In reciting the items for which the plaintiff sought recovery, the learned justice erroneously stated that the plaintiff asked damage for being compelled to hire an assistant to aid him ” and then, after having charged generally that the plaintiff could recover for loss of earnings, refused to instruct the jury, as requested by the defendant, that there could be no compensation for the expense incurred in the employment of a substitute. In view of what had preceded we think this was error. The defendant was entitled to have this element of damage áurely eliminated. The plaintiff had not pleaded it; it was, therefore, not a recoverable subject of damage; and the reference to it, in the evidence and in the charge, might readily have led the jury to adopt it as a basis of speculative damage. The defendant had a right to demand protection against that contingency. It is easy to conceive that, after the court had stated that the plaintiff claimed damages for being compelled to employ a substitute, and had refused to charge that he could not recover the outlay in that regard, the jury was justified in including that item of expense in their verdict. We think that this error was prejudicial to the defendant ' and that the judgment should, therefore, be reversed.

Ebbed matt, P. J., and MacLean, J., concur.

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