Hlavati v. City of Mount Vernon

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.