131 N.Y.S. 610 | N.Y. App. Div. | 1911
It has been found that the plaintiff was defendant’s servant and that he was injured by the negligent failure of the defendant to give him reasonable instruction and warning in the matter of digging holes for piers under a wall. That, question only on the subject of liability was submitted and met with defendant’s exception. There was no such issue, for the complaint and bill of particulars limited the alleged negligence to failure to furnish a safe place to work, and that single issue the court eliminated in the charge. Further discussion of questions suggested oh the appeal is not at. this time necessary. There should be a new trial, costs to abide the event. Jenks, P. J., Hirschberg, Burr and Carr, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.