Opinion
March, 1920.
Judgment and order reversed and new trial granted, with costs to abide the event, for error at folio 864 of the record on appeal in granting plaintiff's motion to strike out the allegation in the bill of particulars of negligence by reason of violation of the traffic regulations. This motion was not made until after the trial had been concluded, after the summing up of both counsel and after the judge had charged the jury on the issue presented by the pleadings as amplified by the bill of particulars. In view of the theory upon which this case was presented on the first trial, where defendant had a verdict, the judgment being reversed solely for error in admission of evidence ( Reffelt v. Brooklyn Daily Times, 187 App. Div. 940), and the change in plaintiff's contentions at this second trial, which was a matter before the jury in the case now before us, it was error to allow this amendment at this stage of the case. We also find reversible error at folios 482, 483, where the learned trial judge allowed plaintiff's witness, the policeman, to testify to his complaint of criminal negligence against defendant's chauffeur, and to explain his reasons for making such complaint, and to testify to his impression of the case. Jenks, P.J., Mills, Putnam, Blackmar and Kelly, JJ., concur.