Daniels v. City of Albany

21 A.D.2d 920, 251 N.Y.S.2d 208, 1964 N.Y. App. Div. LEXIS 3350

Opinion

Herlihy J.

This is an appeal (Action No. 1) from an order of Special Term which granted leave to serve an amended complaint and to increase the ad damnum clause therein. The first cause of action of plaintiff’s amended complaint, captioned “ Cause of Action in Nuisance ” is actually a claim in nuisance growing out of negligence, as evidenced by Paragraph “8” therein and, at most, would only broaden the proof as to what might constitute a continuing act of negligence. Thus, the gravamen of the complaint, in its entirety, is the alleged negligent acts of the defendants which would be the sole basis for any recovery after trial. (Morello v. Brookfield Constr. Co., 4 N Y 2d 83, 90, 91.) It hardly seems necessary to observe that we do not consider the merits of the action. Order of Special Term affirmed, with $10 costs. Gibson, P. J., Reynolds, Taylor and Aulisi, JJ., concur.