Gaemaro v. Stolier — 131 N.Y.S. 610

Majority

p. 610

GAEMARO v. STOLIER.

(Supreme Court, Appellate Division, Second Department.

November 10, 1911.)

Headnote

Master and Servant (§ 291*)—Injuries to Servant—Instructions.

Where the complaint and bill of particulars alleged negligence in failing to furnish a safe place to work, and the only question submitted to the jury was negligence in failing to give warning of danger, a judgment for plaintiff will be reversed.

[Ed. Note.—For other cases, see Blaster and Servant, Dec. Dig. § 291.^[1] ]

Appeal from Trial Term, Kings County.

Action by Thomas Gaemaro against Samuel Stolier. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Argued before JENKS, P. J., and HIRSCHBERG, BURR, CARR, and THOMAS, JJ.

Hugo Hirsh, for appellant.

James F. Morton, Jr., for respondent.

It has been found that the plaintiff was defendant’s servant, and that he was injured by the negligent failure of the defendant to give him reasonable instruction and warning in the matter of digging holes for piers under a wall. That question only, on the subject of liability, was submitted, and met with defendant’s exception. There was no such issue, for the complaint and bill of particulars limited the alleged negligence to failure to furnish a safe place to work, and that single issue the court eliminated in the charge.

Further discussion of questions suggested on the appeal is not at this time necessary. There should be a new trial, costs to abide the event.

Judgment and order reversed, and new trial granted; costs to abide the event. All concur.