p. 734Walter Blake, Respondent, v. August F. H. C. Meyer, Appellant.Headnote
Nuisance — evidence when proof of ownership of building is sufficient— objection after answer of witness — municipal permission to maintain nuisance cannot be proved under general denial.In' an áction.to- recover damages for injuries caused by a cellar door alleged to be a nuisance, the defendant’s ownership of the building is sufficiently established by proof that he leased the building,- repaired the door and told a witness that he owned the premises.
When objection and .exception to testimony is made only after a specific question is asked and answered, the objection is too late. The remedy is by motion to - , strike out the answer.
In such an action for nuisance the defendant cannot show -amunicipal' permission ' under a general denial. - '
Appeal, by the defendant, August F. H-. 0. Meyer, from, a judgment of the County Court of Kings county in favor of the plaintiff, .entered in the office of the clerk of the county of Kings on the 18th day of October, 1904, .upon the verdict of a jury for. $1,250, and also from, an 'order entered in said clerk’s office on- the 3d day - of November, 1904, denying the defendant’s motion for a new trial made upon the minutes.
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 reásonAo disturb the verdict. The argumént 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 spnght to establish it by proof that during this period the defendant leased the premises, that he
p. 735repaired 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 defend- ■ ant 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.