Dovicsak v. Garafano Construction Co. , 52 N.Y.S.2d 485 ( 1945 )

Per Curiam.

The basis of the issue of negligence as submitted to the jury was' the alleged improper bolting of the arm of the lighting pole to the shaft. On this issue the overwhelming weight of the evidence was in appellant’s favor.

The verdict rendered cannot now be supported on a different theory, i.e., that the turning of the whole pole would indicate negligence, for the trial court had refused to submit such issue by denying a motion to amend the pleadings to conform with the proof.

The judgment appealed from should be reversed and a new trial ordered as to the defendant-appellant, with costs to said appellant to abide the event.

Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ., concur.

Judgment unanimously reversed and a new trial ordered as to the defendant-appellant, with costa to said appellant to abide the event. [See 269 App. Div. 664.]