Opinion
January 26, 1906.
Thomas C. Whitlock, for the appellant.
Jacob Friedman, for the respondent.
The plaintiff complains that the defendant so constructed and maintained his cellar door that it was a nuisance; that while plaintiff was on his way along the public street he stumbled over it and fell, to his injury. The defendant offered no evidence. I think that the plaintiff made out a case for the jury, and that there is no reason to disturb the verdict. The argument of the appellant upon the facts is pertinent to an action for negligence rather than to this case. ( Clifford v. Dam, 81 N.Y. 52.)
It is contended that the plaintiff failed to prove the ownership of the defendant. The plaintiff sought to establish it by proof that during this period the defendant leased the premises, that he repaired the door, and that he had told a witness that he owned the premises. I think that the lease was sufficient to raise a presumption of ownership in such a case. ( Conhocton S.R. Co. v. B., N.Y. E.R.R. Co., 3 Hun, 523; Abb. Tr. Ev. [2d ed.] 810.) The testimony as to the repairs was received without objection. Objection and exception to the testimony as to admissions of ownership were made after the question that called for that specific answer had been put and answered. The objection was too late, for the remedy was a motion to strike out the answer. ( Link v. Sheldon, 136 N.Y. 1.) There was no evidence to the contrary adduced or offered by the defendant. I think that the finding of ownership should not be disturbed.
The answer was only a general denial, and, therefore, the defendant could not raise the question of municipal permission. ( Clifford v. Dam, supra; Hubbs v. Schwaneflugel, 87 App. Div. 604. )
The judgment and order are affirmed, with costs.
HIRSCHBERG, P.J., WOODWARD and HOOKER, JJ., concurred.
Judgment and order of the County Court of Kings county affirmed, with costs.