Hlavati v. City of Mount Vernon , 265 A.D. 946 ( 1942 )

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.