Filed Date： 12/14/1942
Status： Precedential
Modified Date： 10/28/2024
The complaint and the bill of particulars charged negligence of the defendants, in effect, in stopping the defendant municipality’s police car without warning. (Vehicle and Traffic Law, § 83, subd. 1; Cons. Laws, ch. 71.) The charge as ultimately made to the jury by the learned trial justice erroneously permitted recovery upon a cause of action not pleaded — slowing down without warning. (Walrath v. Hanover Fire Ins. Co., 216 N. Y. 220, 225; cf. Voccia v. Pleasure Boat Co., 239 App. Div. 165; affd., without opinion, 264 N. Y. 656.) Lazansky, P. J., Hagarty, Johnston, Adel and Taylor, JJ., concur.