Fiorito v. Interurban Street Railway Co.
Appellate Terms of the Supreme Court of New York
Appeal by the defendant from a judgment in favor of the plaintiff entered upon the verdict of a jury in the City Court of the city of New York.
1Opinion of the CourtBischoff, J.
The complaint distinctly proceeded upon negligence in the starting of the car while the plaintiff was in the act of boarding it, and the proof offered was effective only in support of a totally different cause of action — an assault by the conductor and the violent ejection of the plaintiff from the car after he had boarded it in safety.
That the trial court had no power to conform the pleadings to the proof, where this variance was pointed out by motion to dismiss at the dose of the plaintiff’s case, and that an earlier objection to the proof was unnecessary to protect the defendant’s rights,…
2Cases cited1 opinion
- Block v. Third Avenue RailroadAppellate Division of the Supreme Court of the State of New York · 1901
3Cited by1 opinion
- Hammer v. Independent Lamp & Wire Co.Appellate Terms of the Supreme Court of New York · 1916