Majority
p. 727SANDZIG v. ECKSTEIN et al. (Supreme Court, Appellate Term. January 5, 1912.) Argued before SEABURY, GUY, and COHAEAN, JJ.
Headnote
Trial (§ 251[1] ) — Theory of Cause — Pleading and Proof.Where the cause of action pleaded was based on negligence, it was error to submit it to the jury on the theory that it was for a nuisance.
[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.[1] ]
Appeal from City Court of New York, Trial Term.
Action by Nache Sandzig against Jacob Eckstein and another. From a judgment in favor of plaintiff, defendants appeal. Reversed, and new trial ordered.
James J. Mahoney, for appellant Eckstein.
Morrison & Schiff, for appellant Halpin.
Charles E. Hoffman, for respondent.
Notwithstanding that the cause of action set out in the complaint is for negligence, this case was tried and submitted
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to the jury upon the theory of nuisance. The charge of the court failed to present to the consideration of the jury the issues which they should have been called upon to determine. The defendants protected their rights by exceptions duly taken.
Judgment reversed, and a new trial ordered, with costs to the appellants to abide the event.