Opinion
May, 1927.
Present — Dowling, P.J., Merrell, Finch, McAvoy and Proskauer, JJ.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event, upon the ground that the bill of particulars predicated negligence upon the use of buckets, whereas plaintiff at the trial sought to rely not upon any defect in the buckets, but upon the use of buckets in connection with certain rigging. This necessitated testimony as to the rigging, which defendant was obviously not prepared to meet. The defendant was not fairly notified in accordance with its demand of the ground upon which plaintiff would rely to predicate negligence. ( Lazarowitz v. Levy, 194 App. Div. 400. )