In the course of the charge the trial judge submitted to the jury the question whether it was a negligent act, or a prudent act, or an imprudent act and a negligent act on the part of the commissioner to omit to put up a warning or guards at the end of the sidewalk to-keep people from walking off from the sidewalk and on to the' bridge which was in that defective condition. He added: “ If you. say it was an imprudent act, it was a negligent act, why then the village is responsible for the negligent act of the commissioner of highways,- for it was his business to keep those roads in safety. He-was acting for the village in that respect.” And again he charged: “ But it was his business to take care that the sidewalks were hot *498permitted to be left open to this hole.” An exception was taken to the charge as thus given. No such negligence was alleged in the complaint, and it is at least questionable whether the plaintiff should have been permitted to recover upon the ground so stated in the charge.
We think it was error to receive the declarations of the plaintiff as to headache made several months after the accident occurred. (Roche v. R. R. Co., 105 N. Y. 294.)
Non-expert witnesses were improperly permitted to testify as to the mental condition and impaired memory of the plaintiff after the accident occurred.
We grant a new trial upon the exceptions.
Present — Hardin, P. J., Martin and Merwin, JJ.Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event.