Moosman v. New York, New Haven & Hartford Railroad

Judgment reversed on reargument, and new trial granted, costs to abide the event. The defense of contributory negligence is not pleaded. To be proved, it must be *899pleaded. (See Code Civ. Proc. § 841b ;* Sackheim v. Pigueron, 215 N. Y. 62.) Otherwise, the plaintiff would be compelled to enter into a controversy over a matter concerning which she had no notification in the answer, that the defendant proposed to assert as an exemption from liability. Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred..