Claessens v. City of Troy ( 1947 )

Appeal from an order setting aside verdicts recovered by plaintiffs-appellants in an action for damages arising from negligence of the city in permitting a dangerous and unsafe condition to exist adjacent to a walk over which pedestriáns were invited to walk to a natural ice-skating rink. The evidence sustains the verdict. The trial court held that there was a variance between the proof and the pleadings. There was a variance hut it was not so substantial as to require the verdict to be set aside. There was no merit in the contention of the defendant that it was tricked into believing the case was solely a snow and ice case. The city had notice of the existence of the hole which played a decisive role in the accident. Order and judgments reversed, on the law and facts, and the verdicts of the jury reinstated, with costs to the appellants. All concur.