
    Catherine Hoyne, Respondent, v. John Slattery, Appellant.
    (Supreme Court, Appellate Term,
    January, 1906.)
    Pleading — Variance between allegations and proof — Proof of nuisance inadmissible under allegation of “damages to personal property".
    In an action to recover for “ damages to personal property ”, caused by blasting in the street in front of plaintiff’s premises, where it appears on the trial that no trespass is claimed and where plaintiff proves neither trespass nor negligence, a recovery cannot be had on the ground that defendant has committed a nuisance by blasting upon the public highway without license from the municipality; and a judgment upon that ground will be reversed, especially where it is by no means clear that the evidence would support an action for nuisance.
    Appeal by the defendant from a judgment, rendered in favor of the plaintiff, in the Municipal Court of the city of Hew York, second district, borough of the Bronx.
    William F. Clare, for appellant.
    Edward F. Brown, for respondent.
   Per Curiam:

We are of opinion that .justice requires that this' judgment should be* reversed and a new trial had. The action is for damages said to have been caused by defendant’s explosion of a blast in the highway in front of plaintiff’s house. The pleadings were oral, the complaint being for damages to personal property,” and the answer being a general denial. Upon defendant’s demand, a bill of particulars was furnished by which it appeared that the plaintiff claimed that her real estate had been damaged and she and her children had been frightened, but' no amendment of the complaint was had and, so far as the pleadings were concerned, the plaintiff still claimed damages for injury to her personal property. Neither the complaint, nor the bill of particulars indicated whether the plaintiff sued for a trespass or for negligence, and, at the opening of the trial, the defendant, very properly, asked that the plaintiff be required to state upon which theory she claimed to recover. ISTo formal order was made upon this motion, but, after some colloquy between counsel and the justice, it appeared that no actual trespass was claimed; whereupon the justice stated that he presumed that the complaint was founded upon a claim of negligence, to which plaintiff’s counsel assented. The trial then proceeded and, at its close, the plaintiff had proved neither trespass nor negligence. Subsequently the justice rendered judgment for the plaintiff upon the ground that the defendant had been guilty of a nuisance in blasting upon a public highway, without a license from the proper municipal authority. It is quite true that the defendant had not shown such a license, but .there was no reason why he should have done so, because nowhere in the case was there the slightest suggestion that it was sought to hold him liable upon any such ground. He had every justification for believing that , he was only called upon to meet a charge of negligent blasting; andmay well have been surprised to find himself cast in damages for a cause of action which was not suggested by the pleadings, and had not been referred to upon the trial. Of course, it is well understood that litigation in the' Municipal Court, under the allowed system of oral pleadings, is necessarily somewhat informal and that minor variations between the pleadings and the proof will be overlooked; but this rule cannot be extended to so extreme a case as is presented by the present record. As has been said, the evidence was insufficient to sustain an action either for negligence or trespass. It is hy no means clear that it would support an action for a nuisance. The law of nuisances with respect to highways has, generally, been founded upon some invasion of the lawful right of persons to use the highway; and we have been referred to no authority upholding an extension of the law so as to cover consequential damages inflicted upon adjoining property, and not involving any deprivation of light, air and access.

The judgment must be reversed and a new trial granted, with costs to appellant to abide the event.

Present: Scott, Blaechabd and Dowlieg, JJ.

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