
    Lillian Furst, by Her Guardian ad Litem, Kalman Furst, Respondent, v. Max Zucker, Appellant.
    Second Department,
    April 24, 1908.
    Trial — negligence—instructions not within the pleadings — nuisance.
    Where the complaint in an action for personal injuries was drawn upon the theory of negligence and the trial proceeded upon that theory, it is error for the court to charge that the defective sidewalk constituted a public nuisance, and leave to the jury the question as to whether defendant caused the defect.
    Appeal by the defendant, Max Zucker, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff, entered upon the verdict of a jury.
    
      Clarence Winter, for the appellant.
    
      Samuel W. Wallach, for the respondent.
   Woodward, J. :

The plaintiff brings an action to recover damages for personal injuries, alleging negligence on the part of the defendant in permitting the sidewalk in front of his premises to be out of repair. The plaintiff was four years old and fell into a hole in the sidewalk about two feet by. two and one-half feet in size, and five or six inches deep. She sustained painful injuries, and the jury has rendered a verdict for $500.

The learned court charged the jury as a matter of law that the hole in the sidewalk constituted a public nuisance, leaving to the jury the question of whether the defendant, by the removal of a certain tree, caused the hole. The defendant excepted to this charge, and we are of the opinion that this exception presents reversible error, for it is still the rule that judgment should be rendered in conformity with the allegations and proofs of the parties, secundum allegata etprobata. (Wright v. Delafield, 25 N. Y. 266, 268.) The complaint was drawn upon the theory that the defendant owed the duty which primarily rests upon the municipality to have the sidewalk in a reasonably safe condition for the use of the public, and the trial proceeded upon this theory without amendment. When the case was given to the jury it was not upon the theory of negligence, bnt upon that of nuisance, and this the court had no right to do. The evidence that the defendant had anything to do with the removal of the tree, except to consent that it might be taken down, is very slight; there is a very strong probability from the evidence that the tree was taken down by some of the city authorities, and in view of the radical change in the character of the action it would be an injustice to permit this judgment to stand.

The judgment appealed from should be reversed and a new trial ordered, costs to abide the event.

Jenks, Hookee, Rich and Millee, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  