Opinion
May, 1927.
Judgment and order denying new trial reversed upon the law and the facts, and new trial granted, costs to abide the event, upon the ground that the verdict of the jury that defendants, appellants, had abandoned the written contract under seal, under which the work was progressing, and that they had agreed to employ the contractors to do the work mentioned in the contract as their employees, payable by the day, is contrary to the evidence. We are also of opinion that the judgment and order should be reversed upon the law and a new trial granted, upon the ground that the learned trial court erred in admitting evidence of plaintiff's alleged impairment of hearing, evidence of such impairment of hearing being inadmissible under the allegations in the complaint. ( Kurak v. Traiche, 226 N.Y. 266, and cases cited; Piltz v. Yonkers Railroad Co., 83 App. Div. 29.) Kelly, P.J., Young, Kapper, Lazansky and Hagarty, JJ., concur.