SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
May 15, 1969
NEIL R. AVERILL, AS LIMITED ADMINISTRATOR OF THE ESTATE OF JAMES R. AVERILL, DECEASED, APPELLANT,
BEN ATKINS, DOING BUSINESS AS TENT CITY AND ROCHESTER SURPLUS MERCHANDISE, INC., RESPONDENT
Appeal from judgment of Monroe Trial Term dismissing complaint in action for damages for wrongful death.
Del Vecchio, J. P., Witmer, Gabrielli, Moule and Henry, JJ.
Memorandum: The plaintiff should have been permitted to amend the pleadings to conform with the proof so as to allege that the rifle was purchased by William Moulton for Donald Averill and not for the plaintiff's intestate, James Averill. The court refused to do so on the ground it would result in a departure from the theory of the complaint. There was no surprise to the defendant since at the examination before trial William Moulton testified he received $80 from Donald Averill to make the purchase of the gun and the bill of particulars stated that the purchase was made for the brother of the deceased. This was the testimony on trial and no objection was taken. In such a situation the pleadings would be deemed amended to conform to the proof (Di Rosse v. Wein, 24 A.D.2d 510). Such an amendment would have permitted the jury to determine if William Moulton was just a front or an agent and that the sale was made to Donald Averill, a person under the age of 16 years, in violation of subdivision 5 of section 1898 of the Penal Law. In any event the question of common-law negligence should have been submitted to the jury.
Judgment unanimously reversed on the law and facts and a new trial granted, with costs to abide the event.
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