
    Francis C. Presky, Respondent, v. Degnon-McLean Contracting Company, Appellant, Impleaded with The City of New York, Defendant.
    First Department,
    April 10, 1908.
    Negligence —defect in street — subway excavation.
    In an action to recover for personal injuries caused by a hole in a roadway made by the removal of paving stones, the defendant, a contractor engaged in constructing part of a subway, is not liable where it appears that the hole was in a part of the roadway where he had done no work, and the evidence fails to show that he was responsible for the defect which caused the injury.
    Appeal by the defendant, the Degnon-McLean Contracting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county'of New York on the 16th day of February, 1907, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 26th day of February, 1907, denying the said defendant’s motion for a new trial made upon the minutes.
    
      James F. Donnelly, for the appellant.
    
      Herbert C. Smyth, for the respondent.
   Scott, J.:

The defendant Degnon-McLean Contracting Company appeals from a judgment in favor of the plaintiff for personal 4njuri.es. The City of New York, a codefendant, is not a party to this appeal.

The appellant was one of the sub-contractors for the rapid transit subway and engaged in constructing that portion of the road which extended up and under Elm street. At Canal street, a very wide street running at right angles to Elm street, the entire surface of the latter street had been removed and Canal street was carried across it by a wooden bridge extending the whole width of Elm street and about twenty or twenty-five feet into Canal street. There were to be stations at Canal street, and excavations had been made on the north and south sides of that street running back some distance from Elm' street. These excavations were fenced off from the roadway. In order to construct the bridge over Elm street the stone pavement in Canal street had "been removed so that vehicles could pass from the pavement on to the bridge. No more of the pavement of the roadway was removed for this purpose than one or two courses where the bridge and the pavement met, which had been taken up and relaid.

The plaintiff at the time of the accident was driving a loaded truck westerly through Canal street, and approaching the bridge over Elm street, when one of the wheels of his truck slipped into a hole, said to be four feet long and two feet wide, and about the depth of a paving stone. Plaintiff was thrown to the ground and one of the truck wheels passed over him producing somewhat serious injuries. The hole into which the wheel ran was evidently caused by the removal of some of the paving stones. There is no evidence by whom they had been removed, and the only theory upon which the defendant could be held liable is upon the assumption that the holes were caused by appellant in the prosecution of the work of constructing the subway. It, therefore, became important to accurately locate the hole, which was attempted to be done both by oral testimony and by photographs.

The negligence charged against appellant by the complaint was : “ That they did not construct a good, safe and proper bridge over and across the tunnel; * * * that they did not properly inspect and maintain the said bridge and street in a good, safe and proper condition for the use of pedestrians and vehicles, but on the contrary and for a long period of time allowed a hole or rut several feet long and ten or twelve inches deep to be and remain in said Canal street at the easterly end of the bridge aforesañd, and where the bridge aforesaid joined the block pavement of said sireetP No attempt was made on the trial to show any defect in the bridge or in the manner of its up-keep, and the plaintiff relied solely upon the hole as the cause of his injury. The location of this hole is stated with particularity in the complaint as being at the easterly end of the bridge, where the bridge joined the block pavement. If the evidence had shown that it was at the place thus described there would have been a strong presumption that it had been caused by appellant who concededly constructed the bridge. The evidence is very confused and much testimony appears in the record of which the relevance is not-apparent, but the one fact that is made perfectly clear both by the testimony of the plaintiff and other witnesses, and by the photographs is that the hole into which the wheel of the truck slipped was not at the easterly end of the bridge where it joined the block pavement, but ten or twelve feet easterly therefrom in a part of the roadway where it does not appear that appellant had done any work or had had any occasion to disturb the pavement. The evidence, therefore, not only failed to correspond with the pleading, but also failed to attribute to appellant any responsibility for the defect which caused the injury. At the close of plaintiff’s case his counsel moved “ to amend the complaint to conform to the proof,” and under objection and exception his motion was granted. The amendment was not formulated, and it is impossible to say what the complaint alleged, after the amendment, as to the defendant’s negligence. The proof was to the effect that the hole was in a part of the roadway not occupied by appellant in its building operations, and ten or twelve feet from the bridge over Elm street, and there was no proof that the defendant was responsible for the hole. If it was intended to amend the complaint so as to allege this state of facts it would certainly conform to the proof, but would state no cause of action against this appellant. In any aspect the plaintiff failed to show a state of facts corresponding with the allegations’of the original complaint, or any state of facts fastening liability upon the appellant.

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

Patteeson, P. J., Ingbaham, Laughlin and Houghton, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  