
    Gisella Biro, Respondent, v. Salvatore Lembo, Defendant, and Palc Holding & Developing Co., Inc., Appellant.
   Judgment and order reversed upon the law and the facts and a new trial granted, costs to appellant to abide the event. It is our opinion that the court committed prejudicial error in charging, at folio 446, that if the jury found that one of the planks tilted when the plaintiff stepped upon it, it created a presumption of negligence against the appellant which it must explain. The judgment cannot be sustained on the nuisance theory because the action was brought, tried and submitted to the jury on questions of negligence and contributory negligence only. The complaint must be amended if plaintiff would try the case on the theory that the appellant created or permitted a nuisance to exist on the sidewalk in front of its premises. Lazansky, P. J., Kapper, Carswell, Scudder and Tompkins, JJ., concur.  