#### Rebecca Schoenfeld, Appellant, *v.*Mott Avenue Realty Company and Isidor Levy, Respondents.

First Department,

June 4, 1915.

Negligence — fall through, opening in sidewalk — failure to close doors —practice—pleading—joinder of causes for negligence and nuisance.

Where a plaintiff suffered personal injury by falling through an opening leading from a public street to an adjoining cellar, which was ordinarily covered by double doors level with the sidewalk but which had been left open by an employee of the lessee of the premises, she may recover in an action against the owner of the building and the lessee either for negligence, or for the maintenance of a nuisance. These causes of action are not inconsistent, and the plaintiff cannot be compelled to elect between them. She may unite the same in her complaint and recover upon whichever cause the proof warrants.

Ingraham, P. J., dissented in part, with opinion.

Appeal by the plaintiff, Rebecca Schoenfeld, from a judgment of the County. Court of Bronx county, entered in the office of the clerk of said county on the 27th day of January, 1915, upon a dismissal of the complaint by direction of the court at the opening as to the defendant Mott Avenue Realty Company; also an appeal from the judgment in favor of the defendant Isidor Levy, entered in the office of the clerk of the county of Bronx on the 10th day of February, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of February, 1915, denying plaintiff’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 26th day of February, 1915, denying, as stated in the notice of appeal, plaintiff’s motion to resettle the order dated February 10, 1915.

*Morris E.*Gossett, for the appellant.

*James F. Mahan,*for the respondent Mott Avenue Realty Company.

*Morris Berger,*for the respondent Isidor Levy.

Scott, J.:

The defendant Mott Avenue Realty Company is the owner and lessor, and the defendant Isidor Levy is the lessee, of a *92store 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.

Ingraham, P. J. (dissenting):

I concur in the reversal of this judgment as against the defendant Isidor Levy, as I think the verdict of the jury in favor of such defendant is clearly against the weight of evidence, and defendant was liable, both for maintaining a nuisance and for negligence, but I dissent from the reversal of this judgment against the landlord of the premises, the Mott Avenue Realty Company, as it seems to me clear upon the evi*93dence that the defendant was not guilty of maintaining a nuisance, as leasing the premises with the proper doors to protect the passersby in the street was not a nuisance which made the landlord hable for a failure of the tenant to keep the door closed and in a safe condition. He certainly was not liable for the tenant’s negligence, and, therefore, I am in favor of affirming the dismissal of the complaint as against the Mott Avenue Realty Company.

Judgments and orders reversed and new trial ordered, with costs to appellant to abide event.