Mazella v. City of New York — 255 A.D. 996

Majority

p. 996

Mildred Mazella, an Infant under the Age of Fourteen Years, by Joseph Mazella, Her Guardian ad Litem, and Joseph Mazella, Appellants, v. The City of New York, Respondent.

The infant plaintiff — four years old — sues for damages for personal injuries sustained as a consequence of being pushed by a crowd of passengers against an iron gate leading from the ferry-house to the entrance to the boat at the Staten Island ferry terminal. The father sues for loss of services and expenses. The complaint was dismissed for failure to establish the negligence alleged. Assuming the complaint did not sufficiently allege the negligence that resulted in the infant plaintiff’s injuries, we believe the court should not have dismissed the complaint on the merits, but should have granted plaintiffs’ motion to amend the pleadings to conform to the proof, particularly as there was no claim of surprise, no bill of particulars was ordered, there was no objection to the evidence concerning crowding, and no motion was made to strike it out. Judgment reversed on the law and a new trial granted, with costs to appellants to abide the event. Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur.