Vega v. Adolph Roth, Inc. , 202 N.Y.S.2d 841 ( 1960 )

Judgment in favor of plaintiff for $5,256.41, unanimously reversed, on the law and on the facts, and a new trial ordered in the interests of justice, without costs. Plaintiff’s complaint and bill of particulars allege and the case was tried on the theory that the defendant was negligent in failing to repair the toilet-box chain. If plaintiff slipped and fell because of a wet condition or a broken board, then, since defendant is not charged with negligence in these respects, plaintiff is not entitled to recover by reason thereof and defendant was entitled to have the jury so charged. The charge that the claim of plaintiff is that “she lost her balance”, and the omission to charge on the absence of liability in the event the accident resulted from the wet condition or broken board, did not adequately submit to the jury the theory of the defense. (Cf. Rivera v. City of New York, 11AD 2d 7.) Since the case must be retried, we find it pertinent to observe that under the evidence adduced the charge should be limited to actual notice because defendant was not in possession of the premises, and the evidence was to the effect that plaintiff’s daughter, two weeks before the accident, told the superintendent of the building “in English” that the chain was broken. Concur — Breitel, J. P., Yalente, McNally, Stevens and Bastow, JJ.