
    Harriet Christianson, as Administratrix, etc., of Harry Christianson, Deceased, Respondent, Appellant, v. Graybar Construction Corporation, Appellant, Impleaded with The City of New York, Respondent, and Buffington-Welge Construction Co., Inc., Defendant. (Consolidated Appeals.)
   Judgment in plaintiff’s favor against appellant Graybar Construction Corporation unanimously affirmed, with costs. So much of the judgment as dismisses the complaint of the plaintiff against defendants City of New York and Buffington-Welge Construction Company, Inc., unanimously affirmed, with costs to the City of New York against the plaintiff. The court received without objection, in support of the plaintiff’s claim that the collapse of the concrete wall was caused by the negligence of the Graybar Construction Corporation, evidence that on the day before the accident, while there was pressure against the wall from the other side by a filling of dirt which had been placed there by this defendant without a brace on the opposite side to resist such pressure, this defendant excavated a trench close to the wall on the side where it fell on plaintiff’s intestate, and the pleadings were, therefore, deemed amended to include such evidence. Besides, no exception was taken to the submission to the jury by the court of the question of this defendant’s negligence in excavating said trench, nor was any request to charge made with respect thereto. While defendant’s counsel excepted to the part of the charge with reference to the filling in of the earth behind the wall, there are sufficient allegations in the complaint and bill of particulars to justify the submission to the jury of the question of negligence with respect to the filling on the other side of the wall. Present — Lazansky, P. J., Kapper, Carswell, Seudder and Tompkins, JJ.  