Kaehler v. North German Lloyd

46 N.E.2d 342, 289 N.Y. 407, 1943 N.Y. LEXIS 1160

Opinion

Per Curiam.

The complaint, as limited by the bill of particulars accused defendant of one kind of negligence only, i. e., faulty construction. There was no real or substantial evidence of negligent maintenance of the bench. The trial court’s charge to the jury which limited the basis for recovery, and to which no exception was taken, was therefore correct. In this situation, a verdict for plaintiff against the carrier necessarily imported a finding of negli gent construction and so justified a verdict over in favor of that defendant against the impleaded defendant.

The judgment of the Appellate Division so far as appealed from, should be reversed and that of the trial court, affirmed, with ■ costs in this court and in the Appellate Division.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment accordingly.