270 A.D. 363 | N.Y. App. Div. | 1946
The actions are to recover damages alleged to have been caused by a nuisance. The complaints accuse the defendants separately of various acts and omissions as constituting a tortious contribution to its maintenance. Action No. 1 is for'the recovery of damages on account of personal injuries suffered by the infant, Frances Leonard, on February 23, 1942. She was then about seven years old. Action No. 2 is derivative, brought by the father for special damages.
At a trial of the two actions at an Albany term which began May 22d and concluded June 7, 1944, the following dispositions occurred. Plaintiffs were nonsuited as to the defendant Wilson Sullivan Company, Inc. In Action No. 1 the jury rendered a verdict in favor of the plaintiff for $35,000 against defendant Home Owners’ Loan Corporation (hereinafter referred to as HOLC), and the New York Telephone Company; and one of no cause of action as to the other defendants. In Action No, 2, the verdict was for all defendants and this the Trial Justice later set aside, as to defendants HOLC and the New York Telephone Company, for inconsistency.
The defendants, HOLC and the New York Telephone. Company have appealed from the judgments entered upon verdicts against them in Action No. 1 and from the order setting aside the ver diets, in their favor in Action No. 2.
We fail to see that the plaintiffs’ proofs made a prima facie case as against defendant, the New York Telephone Company. There wás no competent evidence that the small cable one inch in diameter it maintained on portions of the other defend
The remaining defendant assigns several errors for the reversal of the judgments and orders from which it has appealed. We consider first its claim of a fatal variance between plaintiffs’ pleading and proof and as to which no motion was made to conform. In the factual description of the cause of the accident the complaints and bills of particulars ascribe it to a “ collapse in its various parts ” of the shed or structure on the rear of this defendant’s 220 Hamilton Street premises. Plaintiffs’ proofs as to the injury producing happenstance is decidedly different from the concept which arises from the language of the pleadings. It is undisputed that a.considerable portion of the wooden roof of the shed did “ collapse ” and that the whole building was razed and removed several months after the accident in question. These actions were not begun until after that. Thus at their inception defendant was apprised of the fact that no very considerable portion of its structure could have been involved in the building collapse described in the complaints, and it rested upon such further slight amplification as was given in the bills of particulars voluntarily furnished upon its request. The gravamen of the actions is in nuisance. If in fact but a few bricks did. fall away from defendant’s structure at such a time and in such manner as to have been a proximate cause of the damages sued for, it is not clear that the variance “ actually misled the adverse party, to his [its] prejudice,” or that we may say the allegations of the complaints were unproven in their “ entire scope and meaning ” so as to have resulted in a “ failure of proof ”, within the reach of the statutory rule. (Civ. Prac. Act, § 434.) It may be said that there was some slight correspondence of the proof to the equivocal and extravagant language employed by the pleader, the latter being a technique, however, of which we do
The place and cause of the accident were issues sharply contested. They hinged principally upon rival eye-witness recitals given by two small children, the infant plaintiff and her playmate Bita Potts, who were, respectively, about seven and eight years of age when it occurred. According to the latter’s version it happened when the infant plaintiff fell while they were both running and playing in the yard of the 220 Hamilton Street premises, and in the space between the brick shed and the dwelling house, and that in such accident the defendant’s structure played no part in causation.
While we pass upon the variance as allowable, it does, however, again press upon us in a consideration of other errors' assigned. There was but little and no proper foundation laid for the reception of many of the twenty-nine photographs of the structure and scenes about the same, and the error of their admission in evidence was prejudicial. Several of the pictures show conditions which were nonexistent at the time of the accident and depicted scenes illustrative of the catastrophic collapse of the structure as described in the complaints and bills of particulars. The photographer who took them was not sworn or produced, nor was his absence accounted for. Plaintiffs made no pretense of any définite affirmative showing of the dates when they were taken. But the evidence is clear that such were several weeks and in some cases months after the accident, and they appear to have been taken by a professional. We count as other errors the following: (a) The receipt of the testimony of plaintiffs’ witness Bing "to measurements of the:
The summation of plaintiffs’ trial counsel transgressed the bounds of legitimate advocacy and was so leniently dealt with by the trial court as to in itself constitute reversible error.
The verdicts in favor of plaintiff in Action No. 1 and for defendants in Action No. 2 were irreconcilably inconsistent and both should have been wholly set aside for that reason. (Gray v. Brooklyn Heights R. R. Co., 175 N. Y. 448, 450; Reilly v. Shapmar Realty Corp., 267 App. Div. 198.)
The judgments of dismissal as to defendants Wilson Sullivan Company, Inc., City and County Savings Bank, Albany Savings Bank and Tony Loudis, should be affirmed. The judgment in favor of the plaintiff in Action No. 1 as against the defendant the Nbav York Telephone Company, should be reversed on the law and facts, and the denial of its motion for a dismissal of the complaint in both actions should be reversed, said motions granted and the complaints dismissed as to said defendant. The judgment in favor of plaintiff in Action No. 1 as against Home OAvners’ Loan Corporation should be reversed on the law and on the facts, and a new trial ordered, with costs to abide the event, and the order setting aside the verdict in favor of this defendant in Action No. 2 should be affirmed.
All concur
Judgment in favor of the plaintiff in Action No. 1 as against the defendant-appellant, the New York Telephone Company, reversed on the law and facts, and complaints in both actions dismissed, without costs.
Judgment in favor of the plaintiff in Action No. 1 as against the Home Owners’ Loan Corporation reversed on the law and facts and a new trial ordered, with costs to abide the event.
Order setting aside the verdict in favor of Home Owners’ Loan Corporation in Action No. 2 affirmed, without costs. [See amended decisions post, pp. -785, 867.]