
    Frederick Heller, Respondent, v. Albert V. Donellan, Appellant.
    (Supreme Court, Appellate Term,
    November, 1904.)
    Negligence — Proof of negligence, in a re„spect not pleaded, is incompetent.
    Where, in an action brought to recover damages for personal injuries sustained by the plaintiff, a carpenter in the employ of an independent contractor engaged in erecting a building for the defendant, in consequence of being struck by a number of bricks which fell upon him while he was in the act of descending a ladder, the only charge of negligence set forth in the complaint was that “ while plaintiff was lawfully on said premises of the defendant through the negligence, carelessness and recklessness of his agents, servants and employees, certain bricks were caused to fall from the upper stories of said building striking the person of this plaintiff,” the plaintiff is not entitled to recover on the theory (evidence in support of which was given over the defendant’s objection) that the defendant was negligent in failing to provide proper coverings to safeguard p'ersons in the airshaft from being injured by materials falling from the upper stories.
    Appeal by defendant from a judgment of the Oity Court of the city of Hew York, in favor of the plaintiff in an action to recover damages for personal injuries, and also from an order denying a motion for a new trial.
    Frederick E. Fishel (George Gordon Battle, of counsel), for appellant.
    M. A. Sachs (Alexander Rosenthal, of counsel), for respondent.
   Fitzgerald, J.

Plaintiff a carpenter employed by an independent contractor upon a building in course of construction brings this action against defendant, the owner of the building for damages for injuries resulting from the fall of a number of bricks upon him while he was in the act of descending by means of a ladder, causing him to fall off the ladder and into the basement. The chief issue of fact upon the testimony was whether the defendant was in charge of the bricklayers or not. It seems that an independent contractor also had been doing the brick work, but it was claimed that the latter had finished or abandoned his job, and that at the time of the accident whatever bricklayers were engaged in the building were there under the supervision and control of the owner (this defendant).

The charge of negligence as specifically set forth in the complaint was “ while plaintiff was lawfully on said premises of the defendant through the negligence, carelessness and recklessness of his agents, servants and employees, certain bricks were caused to fall from the upper stories of said building striking the person óf this plaintiff, etc.” This was the only assignment of negligence, but evidence was admitted over defendant’s objection (to which ruling exceptions were duly taken), tending to establish the negligence of the defendant for failure to provide proper coverings to safeguard persons in the air shaft from being injured by materials falling from the upper stories, and the case was submitted to the jury upon two theories. First, were they satisfied that the bricks were negligently caused to fall, and that defendant was in control of the bricklayers as pleaded; and second (as not pleaded), if not satisfied upon the first point, then that they might find that the defendant as owner was negligent in not providing proper coverings.

This was in effect saying that they might find that defendant was not liable upon the cause of action pleaded, but might be so upon a cause of action not pleaded and was erroneous. Zboynski v. Brooklyn City R. R. Co., 10 Misc. Rep. 7; Dexter v. Ivins, 133 N. Y. 551.

Moreover, we are of the opinion that the exception taken to the statement in the charge of the learned court that the loss of employment according to his calculation amounted to $864, and his failure to modify such statement at the suggestion of defendant’s counsel constituted prejudicial error.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.

Freedman, P. J., and Bischoff, J., concur.

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