
    Owen Murphy, Appellant, v. Isaac A. Hopper, Respondent.
    
      Dismissal on the opening —failure to print the opening in the record.
    
    The dismissal upon the opening of the plaintiff’s counsel of a complaint which, alleges a good cause of action cannot he sustained where the opening is not-a part of the record on appeal.
    ‘ Appeal by the plaintiff, Owen Murphy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of' the clerk of the county of New York on the 26th day of June,. 1901, upon the dismissal of the complaint by direction of the courts upon the pleadings and the opening, on a trial at the New York Trial Term.
    
      Jonathan Marshall, for the appellant.
    
      Frank V. JoTmson, for the respondent
   Ingraham, J.:

The action was brought to recover for the injuries sustained by the» plaintiff while in the employ of the defendant and engaged in making excavations for the foundation of a wall of a building in One-Hundred and Thirtieth street, Hew York city. The complaint alleges that pursuant to the orders of the defendant and his agents, the plaintiff, with other laborers, was engaged in excavating the-. earth for the foundation of said wall or abutment, “ and while so-engaged in said shaft or pit, through the gross negligence and carelessness of said defendant and his agents, the machinery and appliances for letting down and lifting up the' iron bucket for raising-the earth and other material excavated from the shaft," gave way through imperfect appliances and gross carelessness of defendant and his agents in charge thereof, and let fall the heavy iron bucket not properly attached to the lift, into the shaft or pit in. which this plaintiff was at work under the orders of defendant and his agents, and in its descent it fell upon this plaintiff,” causing him injuries for which he seeks to recover in this action. The case came on for trial and the record states that counsel for the plaintiff opened the case on behalf of the plaintiff, and that at the close of the opening counsel for the defendant moved to dismiss the complaint on the pleadings and opening. The opening of counsel is not a part of the record, and just what it was that counsel" said upon which the motion was based is not disclosed. The complaint alleges a.good cause of action and it certainly should not have been dismissed unless in the opening the claim of the plaintiff that the defendant was negligent was expressly limited, so that the allegations of the complaint must be assumed to have been modified by a statement of the facts which counsel expected to prove and upon which he based his cause of action. It is claimed, however, that in consequence of a subsequent colloquy between counsel for the plaintiff and the court the court was justified in dismissing the complaint, but as the complaint alleges a good cause of action which was dismissed upon the opening, that dismissal cannot be sustained unless it appears that the allegations of the complaint were expressly limited by the opening and that upon the facts therein stated, as the only facts that the plaintiff could prove, there was no cause of action. In this colloquy between the court and counsel for the plaintiff it does appear from the statement of counsel that the negligence complained of was that of a fellow-servant of the plaintiff for whose negligence the defendant was not liable. The plaintiff’s counsel, however, in stating the facts upon which he based his right to recover, did not expressly limit his right to the negligence of a fellow-servant. Plaintiff’s counsel stated: The chain was fastened with a hook without any fastening to the hook. It was simply hooked to the bucket and held on the same as that pencil hangs on my hand. When it went down and struck this beam the hook had no more control of the bucket, and the bucket fell back, and instead of going into the hole where it ought to go, it went back where it happened to go and fell on the workmen there. The chain, as I understand it, did not break, but it did for some cause with the engineer who had charge of the engine and the derrick, fall suddenly.” In view of the allegations of the complaint that directly

Note.— The rest of the cases of this term will he found in the next volume, 76 App. Div.— [Rep.

charge the cause of the accident to imperfect appliances and gross carelessness of the defendant and his agents in charge thereof, I do not' think that on this statement alone the court was justified in dis^ missing the complaint. If counsel’s opening had the effect of limiting the express allegations of the complaint, that opening should have been supplied, but in the absence of what counsel said in his address to the jury, wé cannot say that the .colloquy between counsel for the plaintiff and the court justified the court in dismissing the complaint.

We think, therefore, the judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

Yah- Beunt, P. J., Pátteesoh, Hatch and Laughlikt, JJ., concurred.

Judgment reversed, new trial ordered^ costs to appellant to abide event.  