Schoenfeld v. Mott Avenue Realty Co.

Scott, J.: The defendant Mott Avenue Realty Company is the owner and lessor, and the defendant Isidor Levy is the lessee, of a [92] store and basement or cellar at No. 870 Intervale avenue, in the county of Bronx. Directly in front of the store is a staff-way leading down into the cellar, the opening being covered by a double door, which, when closed, is at the same level as the sidewalk and adjacent thereto. Each flap of the door when opened stands nearly upright. At about eight o’clock in the evening of June 4, 1914, an employee of the defendant Levy, having occasion to go into the cellar, left the door open. Plaintiff desiring to go from Levy’s store to another one nearby fell, or partially fell into the open space, and suffered the injuries for which she sues. Her complaint contains two counts, one for negligence and the other for the maintenance of a nuisance. At the opening of the trial the plaintiff was required to elect whether she would proceed as for negligence or as for a nuisance. To this she duly objected and excepted. This was error. The causes of action were not inconsistent and it was the plaintiff’s right to make her proof and to recover upon whichever cause of action the facts warranted. (Ackerman v. True, 175 N. Y. 353; Mulligan v. Erie R. R.Co., 99 App. Div. 499; McNulty v. Ludwig & Co., 153 id. 206; Gropp v. Great Atlantic & Pacific Tea Co., 161 id. 859.) The consequences of this erroneous ruling were serious because she was compelled to assume the burden of proof as to negligence and freedom from contributory negligence, which would not have been imposed upon her but for her forced election to rely upon negligence. The judgments and orders appealed from must be reversed and a new trial granted, with costs to appellant to abide the event. Clarke, Dowling and Hotchkiss, JJ., concurred; Ingraham, P. J., dissented in part.