McNabb v. Select Operating Corp. , 4 A.D.2d 1016 ( 1957 )

Judgment affirmed, with costs to the respondent. Concur — Breitel, J. P., Rabin and Valente, JJ.; Frank and McNally, JJ., dissent in a memorandum by McNally, J.: A reading of this record makes it apparent that the case was tried on the theory of defective construction and design. In fact, the following appears at the conclusion of the court’s charge: “ The Court: By agreement with counsel, a further instruction is being made. ‘There is no claim here by the plaintiff that the stairs in the aisle were in disrepair, but the plaintiff’s contention, and I charge you on the subject of the law, is that the area where the accident occurred was constructed in an inherently dangerous manner’.” Although the narrow issue was thus submitted to the jury, by consent of the litigants, there is no proof in the record of defective construction or design. Ordinarily, such a state of facts would require a reversal and dismissal of the complaint. However, in this case, evidence of defective construction and design was not admitted when offered. Under the circumstances, the judgment should be reversed and a new trial ordered.