Opinion
October 22, 1959
Appeal from the Municipal Court of the City of New York, Borough of Brooklyn, FRED G. MORITT, J.
Cymrot Wolin ( Arthur N. Seiff of counsel), for appellants.
Katz Leidman ( Harvey L. Strelzer of counsel), for respondent.
It was error to permit plaintiff to prove items of damages which were not specified in the bill of particulars ( Voccia v. Pleasure Boat Co., 239 App. Div. 165, affd. 264 N.Y. 656). There shall be no reference to the fact that plaintiff received compensation under the Workmen's Compensation Law since such fact is immaterial upon an assessment of damages.
The judgment should be unanimously reversed on the law, without costs, with leave to plaintiff to move to file a further bill of particulars upon such terms as the court below may deem proper and matter remitted to the court below for assessment of damages and entry of judgment thereon, with appropriate costs in the court below.
Concur — PETTE, HART and BROWN, JJ.
Judgment reversed, etc.