Newman v. Seifter

Gaynor, J.: Error is claimed in the admission of evidence of the services of counsel in vacating the attachment as an item qf damage. Although the trial Judge permitted himself to be harassed with 40 or more crude and repetitious objections to such evidence, instead of stopping them, the precise objection now urged was not presented, viz., that such expense was “ special damage ” and not pleaded (Strang v. Whitehead, 12 Wend. 64; Blynn v. Smith, 22 N. Y. St. Repr. 69). This objection is highly technical and has to be presented with precision like all special or technical objections. To loosely object that the evidence cannot be given under the complaint, or that such damage is not included- in it, is too general. It does not point out to the court any precise objection. It was the duty of the attorney for the defendant to point out to the court that there is a rule of pleading that all special damage has to be specially pleaded, item by item, in order to be proved, and show that the damage came under that head. The judgment should be affirmed. Rich, J., concurred; Woodward, Jenks and Miller, JJ., concurred in result. Judgment and order of the Municipal Court affirmed, with costs.