Summary
In Cohen v. City of New York (1946), 270 App. Div. 1017 [62 N.Y.S.2d 455], cited by defendant, the lower court held that there was a fatal variance between the claim and the proof, where the claimant in the claim marked the place of the accident with an "X" and at the trial testified that the correct place was 100 feet west of the "X" in the claim.
Summary of this case from Parodi v. City & County of San FranciscoOpinion
June 3, 1946.
Appeal by defendant from a judgment in favor of plaintiff wife in an action to recover damages for personal injuries and by plaintiff husband for expenses and loss of services. Judgment reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. Not only is the verdict contrary to the weight of the evidence on the issue whether the crosswalk at Lewis Avenue and Broadway was properly cleaned by the city after the concededly heavy snowfall of February 14, 1940, etc., but the notice required by the Administrative Code of the City of New York (§ 394a-1.0), consisting of a diagram containing an "X" mark said to indicate the place where the plaintiff fell, is incorrect in that it described the location of the accident as at a point that seems to be approximately 100 feet westerly of the actual place of the accident as testified to by plaintiff wife upon the trial. Such variance is fatal to any recovery herein. Moreover, the proof fails to establish any actionable negligence on the part of the defendant. ( Fishetti v. City of New York, 269 App. Div. 948; Staub v. City of New York, 267 App. Div. 834, affd. 295 N.Y. 612; Seltzer v. City of New York, 266 App. Div. 880, affd. 292 N.Y. 560.) Lewis, P.J., Carswell, Johnston, Aldrich and Nolan, JJ., concur.