Opinion
October 20, 1959
Judgment appealed from unanimously reversed on the law and in the exercise of discretion and a new trial ordered, with costs to abide the event. On the trial the theory upon which recovery was sought was that the defect in the metal nosing of the stairs constituted a trap. Plaintiff testified that the tip of her right shoe "stuck in the metal nosing of the step." However the bill of particulars alleged that the defendant was negligent in that it "caused, permitted and allowed the covering of said stairway to become worn, loose, torn, to contain holes, ruts and depressions, and to be unsafe, hazardous and dangerous." The plaintiff did not move to conform the pleadings to the proof. The defendant requested a charge that "unless the plaintiff sustained her injury by catching her foot under the metal nosing, the verdict must be for the defendant." This request was refused. We are of the opinion that the charge requested should have been given. Under the circumstances of this case and because of the variances noted we are unable to conclude that the failure to give the charge requested was not prejudicial to the defendant. (Civ. Prac. Act, § 434.)
Concur — Botein, P.J., M.M. Frank, Valente, McNally and Stevens, JJ.