Jutte v. Hughes

The plaintiff under the-allegation in thé complaint, that by reason of the defective sewerage of defendant’s privies, drains, and drainpipes, an overflow of water into the cellars of the-plaintiff’s houses had been caused, rendering them permanently unfit for use, offered to show special damages from the loss of tenants on account of the cellars being in this condition. The court refused to receive the evidence, as proving any special damages, upon the ground that there was no claim for damages in the declaration for loss of tenants.

The result of this ruling led necessarily to that portion of his charge where he instructed the jury that, in case they found for the plaintiff, he could only recover for the damage to the wall and building, and not for the loss of the rental value of the building. If this ruling was correct, there was nothing left in the complaint, as the evidence shows, which would entitle the plaintiff to damages in case the jury found in his favor. The jury found for the defendant. The refusal *128to receive proof of special damages, under the circumstances, was clearly right. The principle was established among the first cases decided by the learned judges who first presided on the organization of this court. Each of those distinguished justices gave his individual opinion, and the law remains to this day as it was then pronounced (Shipman v. Burroughs, 1 Hall’s Superior Ct. R. 411-430).

Judgment must be affirmed, with costs.

Freedman, J., concurred.