Fisher v. City of Batavia

257 A.D. 1026, 13 N.Y.S.2d 608, 1939 N.Y. App. Div. LEXIS 8946

Opinion

Judgment affirmed, with costs. Memorandum: From our examination of the record, we are of the opinion that the evidence supports the jury’s finding of negligence on the part of both defendants and of plaintiff’s freedom from contributory negligence. We are also of the opinion that the court did not err either in refusing to compel plaintiff to elect between the charges of negligence and nuisance, which are set forth in his complaint, before submission of the ease to the jury, or in submitting the case to the jury under the law of negligence. (Klepper v. Seymour House Corp., 246 N. Y. 85, 92; McFarlane v. City of Niagara Falls, 247 id. 341.) All concur. (The judgment is for plaintiff in a negligence action.) Present — Sears, P. J., Lewis, Cunningham, Taylor and Dowling, JJ.