Opinion
April 11, 1924.
Leopold Freiman, for the appellant.
Samuel Hellinger ( Edward M.O. Pratt, of counsel), for the respondent.
Plaintiff alleged in his complaint that while walking in front of defendant's premises he "tripped and fell over said coalhole cover" and sustained injuries. He testified that he put his foot "on the cover of the coalhole and I went down * * *. When I fell down the cover of the hole turned up and went to the side and rolled away." On this defendant's counsel moved to strike out the testimony as being at variance with the allegations of the complaint. Defendant at no time pleaded surprise, nor asked for time to meet the "varied" charge, if such it was, but in my opinion there was no variance but a mere change in a detail concerning the happening of the accident. Moreover, the bill of particulars stated that the accident was caused by the negligence of the defendant "in maintaining the coalhole cover in a defective and unfastened condition;" consequently, the defendant was fully apprised of the real charge of negligence regardless of whether the plaintiff "tripped" on the cover or whether the cover swung open under his foot. The charge at the trial and the charge in the bill of particulars was the same, namely, that the cover was not sufficiently fastened.
Respondent's further contention is that the coalhole having been in existence for a period of ten years must be presumed to have been licensed, and consequently its mere existence did not constitute a nuisance. To this is added that there was no proof that it was maintained in a defective condition. But in this respect respondent is in error, as pointed out by this court in Miners v. Ausfresser, 167 N.Y.S. 17, which, so far as the question now raised is concerned, is practically on all fours with the instant case. The circumstances testified to warrant an inference of negligence in respect of the care and management of the coalhole. It was exclusively in the hands of the defendant and entitled plaintiff to avail of the doctrine res ispa loquitur.
Judgment reversed and a new trial ordered, with costs to appellant to abide the event.
McCOOK and CRAIN, JJ., concur.
Judgment reversed.