Barton v. Diedrich

Appeal from a judgment rendered in County Court, Rensselaer County. In the complaint plaintiff pleaded that she was injured in the course of being wrongfully ejected from defendant’s grill. There was no proof on the trial to support such a cause of action. The proof by plaintiff was that she leaned against a French door; that one of the panes of glass “was cracked”; that as she was leaning on the door watching a fight between her escort and two other men “ I was excited, and the window just crumbled under me”. The complaint was amended on motion of the plaintiff to conform to the proof without any specification, but plaintiff argues from the facts as developed that the amendment was designed to plead a cause of action for negligence. No actionable negligence in our opinion was shown to have caused plaintiff’s injury. It was not shown that any pre-existing condition of danger existed plainly enough or long enough to warn defendant that it ought to be eliminated or that defendant should have anticipated in the exercise of reasonable care that the glass would give away if leaned upon or even that he should have anticipated that it would be leaned on. In our view a case has not been made out. Judgment reversed, on the law and facts, and complaint dismissed, with costs to appellant. Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ., concur.