
    Sylvian F. Bonny, an Infant, by Mary Bonny, Her Guardian ad Litem, Appellant, v. The City of New York, Respondent.
    Second Department,
    April 11, 1913.
    Municipal corporations — negligence — injury by caving in of street — trial—variance between pleading and proof—appeal—when objection sufficient — amendment.
    Where a parent suing a municipality to recover damages for injury to a child alleges that a sidewalk upon which the child was lawfully standing subsided and fell owing to the defendant’s excavation in the highway, but the proof shows that the child was not upon the sidewalk but some distance beyond the street line, there is a variance between plead-, ing and proof which calls for a dismissal of the complaint.
    Such nonsuit will be affirmed on appeal although the motion to dismiss was upon the ground that the plaintiff failed to prove a cause of action and there was no specific objection to the variance, for under the pleading the objection could not have been obviated if specified, and an amendment at trial would have been improper.
    Appeal by the plaintiff, Sylvian F. Bonny, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 2d day of March, 1912, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Queens County Trial Term.
    
      George F. Hickey [M. P. O'Connor with him on the brief], for the appellant.
    
      William E. C. Mayer [Terence Farley and Archibald R. Watson with him on the brief], for the respondent.
   Jenks, P. J.:

We think that'the dismissal of the plaintiff was fight. She complained that her infant child, when lawfully in a part of a certain city street used as a sidewalk, was injured by a subsidence thereof, attributable to the carelessness and negligence Of the defendant in maintaining and permitting to exist a dangerous and unsafe condition of that sidewalk. ■ The answer was a general denial. •

It appeared that in November, 1909,. the. defendant’s highway department, cut down the roadway of the alleged street in front of plaintiff’s premises to conform to the grade of an avenue that had recently been cut through; that the work had been stopped; that in front of said premises the.path or walk where people used to walk was left above the roadway at a height of about six or seven feet; that the resulting bank was left in a sloping Condition down to the ditch of the roadway, and that the defendant had undertaken no improvements there, and had done nothing at all by way of improving these conditions. j ■

Under her pleading it Was the obligation of plaintiff, in obedience to the, rule secundum allegata et probata, to establish that her infant was on the sidewalk of the street.' Mr. Walsh, the sole eye-witness of the accident, when called by the plaintiff, testified that he saw the -bank collapse, and the child go down with it. Upon cross-examination he determined upon a photograph the exact locality where the infant fell, which, for aught that appeared. otherwise, was some distance outside of the line of the street, and apparently upon the premises of plaintiff’s grandfather, which were adjacent to the premises wherein plaintiff resided. ;

Here, then, was a variance between pleading and proof. The defendant’s motion for dismissal was placed upon the grounds that plaintiff had failed to prove facts sufficient to constitute a cause of action, with citation of Stadelmann v. City of New York (126 App. Div, 352), failure to show negligence or the absence of contributory negligence, and. “ upon the various grounds that the plaintiff has failed to prove facts sufficient to constitute a cause of action. ” There was no specific objection of variance; Although it is the general rule that upon such a motion, the defect relied upon should be pointed out, in order that it may be cured if possible, that rule is subject to the limitation that where no grounds are specified, it is nevertheless sufficient if it is apparent that the objection could not be obviated if specified. (Gerding v. Haskin, 141 N. Y. 520. See, too, McNish v. Village of Peekskill, 91 Hun, 324.)

The cure would have been amendment of the complaint. I think that section 723 of the Code of Civil Procedure would not have authorized amendment at trial.

A person who, when lawfully upon a sidewalk of a city street, is injured by a subsidence of the sidewalk, has a different cause of action, susceptible of different proof, than if he had been upon private land adjacent to the street, and thé private land had given way in consequence of an act that had been done by the city in the street and incidental to improvement of the street. And the measure of obligation of the municipal corporation is quite different. In the one case it is that of due care under the circumstances to keep the street in a reasonably safe condition for use; in the other case the defendant acted in its judicial and governmental capacity in grading the street, but could be held liable for the negligent way. in which the work was done or was left. (Jones Mun. Corp. 156; Elliott Streets [3d ed.], § 474.) Moreover, in one case the plaintiff might be free to invoke the principle of res ipsa loquitur and in the other would be required to adduce proof of culpable negligence. (See Bradbury’s Rules of Pleading, 198 et seq.) It matters not that the facts if properly pleaded would have established a cause of action. (Gasper v. Adams, 28 Barb. 441.)

At this stage of the litigation it is unnecessary to consider whether Stadelmann’s Case (supra) applies. We confine ourselves to the propriety of the nonsuit.

The judgment is affirmed, with costs.

Present —Jenks, P. J., Burr, Carr, Rich and Stapleton, JJ.

Judgment unanimously affirmed, with costs.  