Fiorito v. Interurban Street Railway Co.

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, in this precise situation, are propositions directly established by recent authority. Block v. Third Ave. R. R. Co., 60 App. Div. 191.

Following the case cited, the judgment appealed from must be reversed.

Scott and Fitzgerald, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.