Judgment reversed on the law and the facts, and a new trial granted, with costs to abide the event.
We find that the gravamen of the complaint, as particularized by the bill of particulars, was common-law negligence and not a violation of section 167 of the Labor Law. In view of the pleadings and the proof, the injection of that statute into the case by plaintiff, after he had rested, constituted surprise to the defendants. Under the circumstances, the denial of defendants...
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