Opinion
October 18, 1907.
D.A. Marsh [ George D. Yeomans with him on the brief], for the appellant.
Robert Stewart [ Ralph G. Barclay with him on the brief], for the respondent.
The action is brought for personal injuries alleged to have resulted from a nuisance, i.e., the wrongful maintenance of electric wires in a public street. Evidence offered by the defendant to prove authority to maintain said wires in the streets was excluded upon the trial on the ground that such authority was not pleaded in the answer, and upon the defendant's request a juror was withdrawn and the case went over to enable it to move for leave to amend. Said motion was made on an affidavit containing a bare statement of the history of the case, without giving any reason whatever for the failure to allege in the original answer the facts which the defendant desired to plead in the amended answer; hence the motion to amend was denied. The defendant has apparently taken this appeal for the purpose of getting an expression from this court respecting the correctness of the ruling of the trial judge, as it asks us to affirm the order without costs in case we agree with it that the order which it is appealing from was properly made for the reason that the amendment asked for was not needed, and to reverse the order in case we disagree with its contention. Unless counsel thinks his client has a grievance, he should not burden this court, as we do not entertain appeals for the purpose of giving instruction.
The order should be affirmed.
HIRSCHBERG, P.J., WOODWARD, GAYNOR and RICH, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.