I dissent from the conclusions reached by a majority of the court in favor of the affirmance of the judgment in this case. I think there are two reasons why the same should be reversed.
First. The trial court permitted the jury to find in favor of the plaintiff for the reason that the skid had become slippery through the deposit of dough thereon, and that plaintiff’s fall was due to his slipping upon this substance. In my opinion the complaint contained no allegations which covered this theory. It proceeds upon the line that the defendant placed and maintained the skid in such *194a maimer as to be a general obstruction to those passing along the sidewalk. The allegations clearly outline the idea that the skid was from its general nature, as placed and maintained upon the sidewalk, the cause of plaintiff’s trouble, and there is no fair suggestion that it liad become an obstruction because of some peculiar, unusual and temporary condition into which it had fallen. The complaint relates to the trouble caused by the skid in its ordinary and general condition, and does not point to any danger not naturally and inherently incidental.
It is suggested that it was unnecessary to point out in the complaint the special conditions which, as claimed, caused plaintiff to fall; that it was sufficient to allege in general terms that the skid was an obstruction and source of danger to those using the sidewalk. I agree that it would not be necessary to set up in the complaint in order to prove upon the trial some of the general features of the skid. Under general allegations it would probably be permissible to prove the ordinary and natural conditions of the obstruction, But I think that if the plaintiff expected to rely upon some particular, unusual, temporary feature which, rather than the general construction of the skid, caused his fall, he should have set the same forth in his complaint.
Second. I think it was an improper act upon the part of plaintiff’s counsel- to ask questions tending and intended to bring before the jury the fact that this action was being defended by an accident insurance company. It is perfectly clear that this was the intent tion. The learned trial court by his remarks at the time seems to have fully realized it. There was no other sufficient excuse for asking the questions propounded by plaintiff’s counsel. They were asked of his own client and there was no suggestion in the evidence already given by him that he had left out any part of the conversation between him and defendant’s attorney which required the asking of the objectionable question. Upon the examination of some unknown witness counsel, perhaps, might have been justified in putting questions intended to ascertain whether some part of a conversation had been left out, but it is not to be assumed that counsel was in such ignorance of what his client could testify to upon this-important subject as required the propounding of the question asked and complained of. It is urged that it is common for employers to *195take out accident insurance policies, and that, therefore, when defendant’s counsel suggested to the plaintiff that he came representing his employer it was natural to assume that he represented, an accident insurance company. There is no claim that plaintiff’s employer was responsible for liis accident, and so far as I know it has not been customary for employers to take out insurance policies to guard against accidents to their employees resulting from the negligence of third parties. Of course the counsel for the defendant denies explicitly and with quite convincing force that he made to plaintiff any such statement as was claimed.
It seems to me that the conduct of counsel comes fairly within the. principles laid down by this court in Manigold v. Black River Traction Co. (81 App. Div. 381).
I think the judgment and order should be reversed.
Judgment and order affirmed, with costs.