
    BRIDGET DOYLE, Plaintiff and Respondent, v. MICHAEL MULREIN, Defendant and Appellant.
    A party who, by an erection made by himself, renders an excavation made on adjoining property by the owner thereof more dangerous to those lawfully using the highway than it otherwise would be, is bound to use proper and reasonable precaution to protect those so using the highways from sustaining injury by falling (without negligence on their part) into the excavation.
    A violation of this duty, by the negligent omission of such precaution, subjects the’ violator to a liability for damages at the suit of one who thereby, without contributory negligence, sustains injuries.
    An objection that the cause of action proved is not the cause of action alleged in the ■ complaint, and that the cause of action alleged in the complaint is unproved in its entire scope and meaning, must be distinctly taken at the trial to be available on appeal.
    A motion to dismiss the complaint, without stating the grounds therefor, is insufficient to enable the defendant to raise on appeal the objection to the denial of the motion.
    Before Monell, Jones, and Freedman, JJ.
    
      [Decided October 30, 1869.]
    This case was tried before Chief-Justice Barbour and a jury.
    ■ The action was brought to recover damages for injuries sustained by plaintiff from falling into an excavation. The complaint, omitting such portions as are not necessary for the decision of the cause, was as follows:
    Bridget Doyle, the plaintiff in this action, respectfully shows to this Honorable Court that on or about the second day of November, 1867, at the city of New York, Michael Mulrein, the defendant, had caused certain excavations to be made on the lot and sidewalk fronting the same, situate on the west side of James street, about seventy feet south from the corner formed by the intersection of said street and New Bowery, and known as No. 27 James street, to the best knowledge, information, and belief of the plaintiff.
    
      That said, excavations were so made on the said lot and sidewalk fronting on the same, to the depth of eight to ten feet or thereabout.
    And this plaintiff further shows that the said excavations were, at the time aforesaid, left in a negligent and careless condition, in this that they were left without sufficient guards, or any guards, for proper protection of pedestrians on the said sidewalk and street, and that the said negligent and careless condition was and remained a continued danger to passers-by.
    That at or about 8 o’clock p.h. of the second day of November, 1867, while the plaintiff was passing along the said sidewalk, as she lawfully might, intending to go from Chatham square to No. 65 James street, she did, without any negligence or carelessness on her part, fall into the said excavation so made in the said lot and sidewalk so being negligently and carelessly unguarded and unprotected as aforesaid.
    That, by reason of the premises, the said plaintiff has sustained damages, as she is advised and believes, in the sum of one thousand dollars.
    Wherefore she demands judgment against the said defendant for her damages in the premises, in the sum of one thousand dollars.
    On the trial, the following matters appeared in evidence: A brick house stands on the corner of New Bowery and James street. Opposite to a portion of this house, and a portion of the excavation, there was a large quantity of bricks piled up, resting partly on the sidewalk and partly on the street, leaving a space, between the pile and the house and the pile and the excavation, of about two feet. This pile extended from some point opposite the excavation a distance of twenty-five or thirty feet to a point distant ten - or twelve feet south of said corner. A person passing along James-street, in a southerly direction, first encounters this house and pile of bricks, and, passing between them, comes immediately to the excavation in question, which was on the lot adjoining this corner-house on the south.
    The excavation was made for the purpose of laying the foundation of the James street school-house, to be erected on such adjoining lot, and the evidence -was contradictory as to whether it extended into the sidewalk or not.
    The defendant was the contractor to build the school-house. By his contract he was to erect the building, but not to excavate for the foundation. He, in fact, did not dig, or cause to be dug, the excavation. That was done by some other person who, having finished his work, had left the premises.
    At the time of the accident, defendant had not used or actually occupied any part of this excavation which laid between his building line and the street, and his building line was four feet inside of the inside line of the sidewalk, nor was it necessary for erecting the building to use or actually occupy that part. He, however, had erected the above-mentioned pile of bricks, and the effect of this was to prevent the street lamps on the corner of James street and New Bowery from shedding any light in the narrow passage-way between the pile of bricks and the house or •on the excavation.
    The only safeguard pretended to have been erected was a large timber running from the corner house across the sidewalk to the pile of bricks. There was contradictory evidence as to whether that safeguard was there or not. The preponderance of proof was that it was not.
    On the evening of November 2,1867, the plaintiff was walking down James street from the New Bowery, passed through this narrow passage-way, and suddenly fell into the excavation.
    At the conclusion of the testimony on both sides, the defendant moved to dismiss the complaint, without specifying any grounds. The motion was denied and an exception taken.
    The judge thereupon charged the jury that, to “ entitle the plaintiff to recover, they must be satisfied from the evidence that the defendant was negligent in the performance of some duty which he ought to have done, and that the plaintiff was guilty of no negligence which contributed to the accident. If, in walking along the sidewalk, she exercised the care which a prudent person would have done under the circumstances, and the accident occurred without any fault on her part, she would be enitled to recover, if they found that the -defendant was negligent in the performance of some duty which he ought to have performed.
    “ That the evidence showed there was a pile of brick, partly covering the sidewalk, leaving a space of two or three feet between the brick and the house, and that there was an excavation of eight or ten feet into which the plaintiff fell. The defendant had given some testimony himself in regard to the matter. It was for the jury to say, from all the evidence, whether he occupied or used the excavation. If he did so occupy and use it, without placing around the excavation a proper guard, or without putting a light there, or taking such precaution as would warn people of the danger, he would be liable for such damages as the plaintiff had sustained— in case they found there was no negligence on her part.”
    Defendant’s counsel then asked the court to charge that the defendant was not in the occupancy or possession of the excavation on James street, and was therefore entitled to a verdict.
    The court refused, and defendant excepted.
    The jury rendered a verdict for the plaintiff for $150, and judgment was entered thereon, from which the defendant appealed.
    
      Mr. A. A. Redfield for appellant.
    
      Mr. H. C. Snebley for respondent.
   By the Court:

Jones, J.

One who, by an erection made by himself, in a public highway, renders an excavation made on adjoining property by the owner thereof, or his authority, more dangerous to those lawfully using the highway than it otherwise would be, is bound to use proper and reasonable precautions to protect those so using the highway from sustaining injury by falling (without negligence on their part) into the excavation, thus rendered more dangerous.

A violation of this duty, by the negligent omission of such precautions, subjects the. violator to a liability for damages at the suit of one who thereby, without contributory negligence, sustains injuries.

The uncontroverted facts in this case show that the defendant, oy the erection of the pile of bricks in the street, rendered the excavation more dangerous to those using the street at night than it otherwise would have been.

The questions as to whether defendant negligently omitted to put proper and reasonable safeguards about this excavation, as to whether plaintiff was guilty of negligence contributing to the injury, and as to damages sustained by her, were submitted to the jury, who found in favor of the plaintiff upon sufficient evidence.

I am aware that the defendant’s liability was not placed upon the above ground, either in the complaint or in the charge of the judge, and am also aware of the principle .that a recovery should he secwidum allegata as well as probata (Rome Exchange Bank v. Eames, 1 Keys, 588; Wright v. Delafield, 25 N. Y., 266; Code, sections 171-173).

But the objection that the cause of action proved is not the cause of action alleged in the complaint, and that tire cause of action alleged in the complaint is unproved in its entire scope and meaning, must be distinctly taken at the trial in order to be available on appeal.

This objection was not so taken in.this case.

The defendant moved to dismiss the complaint without specifying any grounds, and on a denial of the motion an exception was taken. Such a motion is held by the Court of Appeals to be insufficient to enable the defendant to raise, on appeal, the objection in question (Belknap v. Seely, 14 N. Y., p. 144; Rosebrooks v. Dinsmore, 5 Abbt., N. S., 59, reversing 4 Robertson, 672).

The only other exception is as to a refusal to charge “ that the defendant was not in the occupancy or possession of the excavation, and was therefore entitled to a verdict.”

As his liability does not depend on his occupancy or possession of the excavation, it would have been error thus to charge.

The exception does not point to the objection that, although there may be some cause of action proved, yet it is not the one alleged in the complaint, and that the cause of action alleged in the complaint was wholly unproved in its entire scope and meaning, as the ground of the request to charge that defendant was entitled to a verdict. If the objection had been thus pointed, non constat but that the judge might have allowed a juror to be withdrawn and permitted plaintiff to move at Special Term to amend his complaint.

The only point raised by this exception is, whether the proof sustains the ground upon which the judge at the trial placed the defendant’s liability. It is unnecessary, in the view taken by the General Term of the ground of defendant’s liability, to consider that point.

Judgment affirmed, with costs.

Monell, J., dissented.  