Opinion
November 9, 1942.
The plaintiff was injured while skating upon a rink conducted by the defendant for profit. He appeals from a judgment dismissing his complaint. In the complaint, among several other charges of negligence, he alleged that the employees of the defendant caused him to fall. When proof was offered to the effect that his fall was caused by an employee, skating backward and weaving in and out of the crowd, striking the plaintiff and tripping him, it was objected to upon the ground, among others, that such proof was not within the issues. The objection was overruled and the evidence received. Upon that theory the plaintiff made out a cause of action. At the close of the plaintiff's case, a motion made by the defendant to dismiss the complaint for failure to make out a cause of action was granted, apparently upon the ground that the evidence received over the defendant's objection could not be considered because it was not within the issues raised by the pleadings. This was an erroneous conclusion that requires a reversal. ( Kelley Lumber Co. v. Otselie Valley Railroad Co., 136 App. Div. 146, and cases therein cited.) While the complaint is not as definite and certain as it ought to be, it sufficiently alleges that the plaintiff's injuries resulted through a fall caused by the negligence and carelessness of the defendant's employees. Judgment reversed on the law and a new trial granted, with costs to abide the event. Hagarty, Johnston, Adel, Taylor and Close, JJ., concur.