Opinion
December 20, 1927.
Appeal from the City Court of the City of New York, county of Bronx.
Frank J. O'Neill [ John F. Foley of counsel], for the appellant.
Leo M. Wieder, for the respondents.
Plaintiffs were walking in the street when a sign upon defendant's building fell and injured them. Although in a colloquy when the case opened plaintiffs' counsel stated that he desired to amend his complaint to add to the words charging negligence the words "so as to constitute a nuisance," he withdrew the request upon the court's statement that he did not think that it was necessary. The case then proceeded as one upon negligence. Defendant proved without contradiction that he had ordered the sign to be installed and that the sign contractor called on a Saturday with the sign; that defendant left to keep an appointment, and that his place of business was closed on the succeeding day, Sunday. The accident happened at six-twenty-six P.M. on Sunday. Defendant had never even seen the sign on the building. Apparently it was removed by the public authorities after it had fallen and before the defendant had returned to his place of business on Monday morning. Under these circumstances it is clear that defendant completely rebutted the inference of negligence on his part which arose from the application of the doctrine res ipsa loquitur and that there was really no issue to submit to the jury. The appropriate motions to dismiss made by the defendant should have been granted. We do not wish to indicate any opinion on the question as to whether an action based on nuisance may be sustained ( McNulty v. Ludwig Co., 153 A.D. 206; Uggla v. Brokaw, 117 id. 586), but as the present case was tried exclusively on the theory of negligence, the judgment cannot be sustained on any other theory. ( Martin v. Pettit, 117 N.Y. 118; McNulty v. Ludwig Co., 125 A.D. 291. )
Judgment reversed, with costs, and complaint dismissed, with costs.
All concur; present, BIJUR, LEVY and CRAIN, JJ.