Opinion
October 17, 1958
Appeal from the Erie Special Term.
Present — McCurn, P.J., Williams, Bastow, Goldman and Halpern, JJ. [ 10 Misc.2d 63.]
Order reversed, without costs of this appeal to either party, and motion granted, without costs, with leave to plaintiff to file an amended complaint within 20 days after service of a copy of the order herein. Memorandum: The complaint is based on alternative theories of negligence, one of which is conceded to be without merit. It is well settled that unless such a pleading is good as to both alternatives it must be dismissed as insufficient. ( Potter v. Gilbert, 130 App. Div. 632, affd. 196 N.Y. 576; Johansson v. Kemp, 211 App. Div. 276.) All concur.