Agnelli v. Tonegatti

20 A.D.2d 887, 248 N.Y.S.2d 943, 1964 N.Y. App. Div. LEXIS 3900

Opinion

Judgment unanimously reversed and vacated, on the law, the facts and in the exercise of discretion, and a new trial ordered, with costs to abide the event. The complaint is confusing and unnecessarily diffuse, and affords some justification for defendant’s contention that it pleads a statutory cause of action based upon the Workmen’s Compensation Law. It also alleges, however, a common-law cause of action based on negligence. Reading the complaint in conjunction with the bill of particulars, it is evident that defendant was not surprised or misled, and adequately apprised of the nature of plaintiff’s claim. The judgment must nevertheless be vacated because it is against the weight of the credible evidence. To establish negligence on the part of her employer, plaintiff, a household worker, had to prove that the ladder from which she fell was defective. This she has failed to prove satisfactorily, perhaps because of language barriers. All she offered as to the condition of the ladder was her testimony that it was shaky and her very unclear and at times unintelligible testimony about some loose screws on the ladder. Concur — Botein, P. J., McNally, Stevens, Eager and Steuer, JJ.