#### Samuel Katz, an Infant, by Charles Katz, His Guardian ad Litem, Appellant, *v.*The City of New York, Defendant, Impleaded with the Board of Education of the City of New York, Respondent.

First Department,

May 1, 1914.

Municipal corporations — negligence — nuisance — injury to child by defective condition of playground—pleading — sufficiency of complaint — effect of request by plaintiff’s counsel after dismissal of complaint to go to the jury on another ground — construction of complaint and opening after dismissal.

A complaint in an action against the city of New York and the board of education of said, city to recover damages for personal injuries alleged to have been sustained by the plaintiff while attending one of the public 'schools in said city, which charges that while the plaintiff was a scholar in one of the schools he was directed by the authorities and teachers to engage in certain games and exercises in the playground, and that while so engaged he was caused to fall, sustaining permanent injuries because of the defective condition and construction of the flooring of the playground, and that the defendants maintained the playground for a long time after it was known to be in an unsafe and dangerous condition, states a cause of action for negligence.

The fact that plaintiff’s counsel, after taking an exception to the dismissal of such complaint, asked to go to the jury on the ground that the allegations were sufficient to charge the board of education with maintaining a nuisance, did not change the allegations of the complaint or what counsel had stated in the opening would be proved.

Where a complaint is dismissed upon the opening of plaintiff’s counsel not only the complaint but the opening address must receive a liberal interpretation.

Appeal by the plaintiff, Samuel Katz, an infant, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 3d day of December, 1913, upon a dismissal of the complaint *“*on the merits” by direction of the court on the opening, and also from the order upon which said judgment was entered.

*Herman Herst, Jr.,*for the appellant.

*Terence Farley,*for the respondent.

*133McLaughlin, J.:

This action was brought against the city of New York and the board of education of the city of New York to recover damages for personal injuries alleged to have been sustained by the plaintiff while attending one of the public schools in the city of New York. At the beginning of the trial plaintiff’s counsel elected to discontinue the action as against the city of New York and to proceed against the board of education alone.

Upon the pleadings and opening of plaintiff’s counsel the complaint was dismissed upon the merits, and from the judgment entered to that effect plaintiff appeals.

It is sought to sustain the judgment on the ground that the action was brought to recover damages caused by the maintenance of a nuisance. The complaint clearly states a cause of action for negligence. It charges that while the plaintiff was a scholar in one of the public schools of the city of New York he was directed by the authorities and teachers in said school to engage in certain games and exercises in the playground and *“*that while so engaged plaintiff because of the defective, worn and dilapidated condition of the flooring of said playground, and the defective construction of the same was caused to fall, sustaining severe, painful and permanent injuries; * -x- * that the said defendants maintained said school building and the playground and flooring thereof aforesaid as a public school and there received and instructed many pupils of which plaintiff was one, for a long time after the same was, and was well known to the defendants to be in an unsafe and dangerous condition and it was in said condition at the time of the accident above described.”

Not only the complaint, but the opening of plaintiff’s counsel as well indicates that a recovery was sought on the ground that the injuries were caused solely by defendant’s negligence. It is true, after the complaint had been dismissed and an exception taken to the ruling, plaintiff’s counsel asked to go to the jury on the ground that the allegations of the complaint were sufficient to charge the board of education with maintaining a nuisance, but this request did not change the allegations of the complaint, or what counsel stated in the opening would be proved. Where a complaint is dismissed upon the opening of *134plaintiff’s counsel, not only the complaint, but also the opening, must receive a liberal interpretation. *(McCarton*v. *City of New York,*149 App. Div. 516.) After the court had dismissed the complaint, counsel for plaintiff was not required to ask leave to go to the jury because the rights of his client were fully preserved by resting on the exception to the ruling. The only importance to be attached to the request is that in the opinion of counsel if the complaint did not state a cause of action for negligence, then it might be considered as stating one for a nuisance; in other words, the client having failed upon one theory, it was sought to preserve his rights by trying to adopt another one.

The judgment appealed from, therefore, is reversed and a new trial ordered, with costs to appellant to abide event.

Ingraham, P. J., Laughlin, Scott and Dowling, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event. Order to be settled on notice.