
    Adolph Paltey and Gumpert Alexander, Appellants, v. Patrick B. Egan, Respondent, Impleaded with the Dearborn Construction Company and William Galway.
    First Department,
    May 7, 1909.
    Trial — theory of action adopted at trial binding on. appeal.
    A party cannot acquiesce in the trial of a cause upon a specific theory and then urge as ground for reversal that he has established a cause of action on an ■ entirely different theory.
    Laughlin, J., dissented.
    Appeal by the plaintiffs, Adolph Paltey and another, from a judgment of the Supreme Court in favor of the defendant Patrick B. Egan, entered in the office of the clerk of the county of Hew York on the 17th day of June, 1908, upon'.the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term, the verdict of a jury in favor of the plaintiffs against the said defendant having been set aside by the court. . ,
    
      
      Louis J. Vorhaus, for the appellants.
    
      James Kearney, for the respondent.
   Houghton, J.:

On a former trial plaintiffs recovered a verdict against the defendant for injury to their merchandise on. the announced theory of a violation of the provisions of the Building Code in causing an excavation more than ten feet below the curb line. This court held that the action was not maintainable on that theory. (122 App. Div. 512.)

The complaint contains appropriate allegations in negligence and the present trial was, had upon that theory. The jury rendered a verdict in plaintiffs’ favor. By consent the court reserved decision upon the motion- to dismiss the complaint until the coming in of the verdict. On the verdict being rendered the court set it aside and granted the motion dismissing the complaint.

The wall of the building occupied by plaintiffs and owned by the defendant fell into an excavation on the adjoining lot, also owned by defendant. The defendant had let the contract for the excavation to an independent contractor. The court, without objection by plaintiffs, properly eliminated any negligence because of improper excavation and submitted to- the jury the question of defendant’s negligence in failure to observe the dangerous condition of the wall and failure to remedy it by shoring up.

The evidence discloses that the wall had been properly shored up but upon the shoring being taken away by the contractor the wall immediately collapsed. There is no proof -that the defendant was present when this shoring was removed or that he knew of its being removed and failed to protest. The court was, therefore,, right in saying that there was no evidence upon which negligence on his part could be founded in this respect.

The plaintiffs now seek a reversal of the judgment on the ground that' they being tenants of the defendant, he as landlord violated his duty tó them in causing, by himself or- through his contractor, the collapse of the building which they-occupied. The difficulty with this position is that by acquiescence of the plaintiffs the cause was tried not on this theory but' on the theory of negligence. A party cannot acquiesce in the trial of a cause upon a specific theory and then urge as ground for reversal that he has established La cause of action on an entirely different theory. The plaintiffs had obtained an order permitting them to amend their complaint by changing it to breach of covenant, the terms of which they refused to accept. Even if the complaint under its allegations could be construed to be one for breach of covenant, the case was not tried upon that theory. It was tided as an action in negligence and the court was right in saying that the plaintiffs failed to prove a cause of action. There was no suggestion that the case be submitted on any other theory or that the complaint stated other than a cause of action for negligence, and before the summing up the court announced upon what theory the question would be submitted to the jury, and there was no protest against following the course marked out by the court.

Under the circumstances the dismissal of the complaint was proper and should be affirmed.

Patterson, P. J., McLaughlin and Scott, JJ., concurred; Laughlin, J., dissented.

Laughlin, J: (dissenting):

I dissent on my dissenting opinion on former appeal (122 App. Div. 512, 518). ' .

Judgment affirmed, with costs.  