(concurring in part and dissenting in part). I concur in the dismissal of the complaint against the subcontractor-defendant Central Cement Finishing Co., Inc. I dissent from the affirmance of the judgment against defendant-appellant John Lowry, Inc.
The complaint and the bill of particulars do not allege the presence of debris at the site of the occurrence or that debris caused the accident. In fact, the presence of debris as the cause of the accident was not asserted until proof thereof was adduced on the trial. The general allegation of the failure to provide a safe place to work, amplified by the specific allegation that said defendant permitted “ the ends of protruding rods to be exposed ’ ’, excludes any claim of negligence grounded on the presence of debris at the site of the occurrence. No motion was made to amend the complaint or the bill of particulars so as to allege such a condition; nor was there any motion made to conform the pleadings to the proof. The motion to strike out all the testimony as to debris, insofar as it was submitted in proof of negligence against John Lowry, Inc., should have been granted. If, as the majority suggests, John Lowry, Inc., was under a duty to guard the protruding rods, it is clear, on this record, that the trial court predicated liability against it solely on its failure to remove debris. The judgment against it should not, therefore, be permitted to stand.
The judgment as to defendant-appellant John Lowry, Inc., should be reversed and a new trial ordered.
Botein, P. J., Bbeitel, Rabin and Stevens, JJ., concur in Memorandum; McNally, J., dissents in part and concurs in part in opinion.
Judgment in favor of plaintiff against defendants modified, etc. [See 10 A D 2d 687.]