#### Louis Pfau, Respondent, *v.*Jerome Alteria, Impleaded, etc., Appellant.

(Supreme Court, Appellate Term,

June, 1898.)

negligence —- Honsuit—Opinion of lay witness.

Where the defendant has failed to make the contributory negligence of the plaintiff a ground for the dismissal of the complaint in an action based upon negligence, and this defect might have been supplied by the plaintiff had his attention been called to it on the trial, the court will refuse to consider the objection when made for the first time on appeal.

Upon the trial of such an action, it appeared that the plaintiff, a bricklayer who had just been discharged from further work upon a building, was injured by a brick which fell from a scaffold. He was permitted to testify, under objection, among other things, “ But I tell you, your honor, my head will never be the same ”.

Held, that as the witness was not an expert, he was incompetent to express such an opinion.

Appeal by the defendant Jerome Alteria, from a judgment of the Municipal Court of the city of Eew York, borough of Manhattan, sixth district, rendered in favor of the plaintiff against the defendants, by the justice thereof, without a jury.

Action to recover damages for a personal injury claimed to have been sustained in consequence of the defendants’ negligence. The pleadings were oral. The answer was a general denial. The opinion states the material facts. ‘

Edward V. Thornall, for appellant.

Sidney J. Cowen, for respondent.

*694Giegerich, J.

The respondent was injured by' a portion of a brick which fell from a scaffold in front of a Building,-in the course of'erection, while standing on the sidewalk from three to five feet from the east end of the building.

He had been employed upon such building as a bricklayer for three weeks prior to the accident. His services had been dispensed with about an hour previously and he was waiting for his pay.

A reversal of the judgment is sought on the ground, among others, that the respondent was guilty of contributory negligence. Ho such ■ ground, however, was urged in the court below. There the only reason assigned for a dismissal of the complaint was that the negligence of the appellant had not been shown.

In Quinlan v. Welch, 141 N. Y. 158, 165, the court applied the rule, that a motion for a nonsuit is ineffectual unless the grounds upon which it is based are specified. There the defendant moved for a nonsuit upon two grounds, and upon appeal sought to add another. At a subsequent term of the same court, it was held in Gerding v. Haskin, 141 N. Y. 514, 520, that “ where no grounds are specified for a nonsuit, the motion is sufficient if it be apparent that the objection made to the plaintiff’s recovery could not have been obviated if it had been particularly specified.” As we áre not satisfied, however, that the alleged defect in plaintiff’s case could not have been supplied had his attention been specifically called thereto, it must be held, that the said ground for dismissing the complaint cannot in any event be considered upon this appeal.

On the trial the plaintiff testified: *“*But I tell you, your honor, my head will never be the same as it was.”

Objection was made to this portion of the testimony, and a motion made to strike it out upon the ground that the respondent was not ' an expert as to his injuries. The motion was denied and the appellant noted an exception.

We think such ruling was erroneous'for the reason that the wit-' ness was not an expert and, therefore, was not competent t-o give an opinion upon this question. O’Connell v. Beecher, 21 App. Div. 298.

Eor this reason the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Beekman, P. J., and Gildersleeve, J.," concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event. ■ ’ i