Opinion
July 1, 1963
In an action to recover damages for wrongful death and for personal injuries arising out of negligence with respect to a gas heater, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Kings County, entered July 18, 1961 after a jury trial, as, at the end of plaintiffs' case, dismissed the complaint as against the defendant Gas Company, by reason of plaintiffs' failure to prove the allegations in their complaint as amplified by their bill of particulars. As to the other defendants named, the action has been either discontinued or settled. Judgment, insofar as appealed from, reversed on the law and the facts; new trial granted as between plaintiffs and the defendant Gas Company, with costs to plaintiffs to abide the event; and action severed as against the other named defendants. In our opinion, under the unusual circumstances contained in this record, the plaintiffs, in the interests of justice, should be afforded a new trial and the opportunity to present the evidence, which the record shows to be available, in support of proper pleadings. Plaintiffs, if so advised, within 30 days after entry of the order hereon, may serve an amended complaint and amended bill of particulars alleging the Gas Company's specific acts of negligence which they (plaintiffs) will assert upon the new trial. Ughetta, Acting P.J., Kleinfeld, Christ, Brennan and Hopkins, JJ., concur.