Opinion
June 18, 1963
Judgment entered June 27, 1962, in favor of plaintiff, unanimously reversed on the law and on the facts, and a new trial ordered, with costs to abide the event. The cause of action as set forth in the complaint was based upon a theory of the supplying of a defective instrumentality for plaintiff's use. At the trial the theory upon which liability was sought to be predicated was the assurance of safety concept. This was embraced within the court's charge as given originally but, upon exception, the court admonished the jury to disregard it since this theory of liability was not pleaded or advanced in the bill of particulars. The injection of this theory by plaintiff, which remained throughout the trial, undoubtedly improperly influenced the verdict. In light of plaintiff's version of the accident and the accounts given by Kraus, plaintiff's superior, and Tubridy, appellant's foreman, the finding of defendant's negligence, implicit in the jury's verdict, is against the weight of the credible evidence. (Cf. Politi v. Irvmar Realty Corp., 7 A.D.2d 414. )
Concur — Botein, P.J., Breitel, Rabin, McNally and Stevens, JJ.