Morris v. Barrisford
New York Court of Common Pleas
Appeal from trial term. Action by John Morris against William H. Barrisford to recover damages for personal injuries caused by the fall of an awning attached to defendant’s premises, and projecting over the sidewalk along which plaintiff was passing. The court compelled plaintiff' to elect between a cause of action for negligence and a cause of-' action for nuisance.
1Opinion of the CourtPryor, J.
It is impossible to construe the complaint otherwise than as asserting a right of recovery for injury from a nuisance.The imputation of negligence in the maintenance of the awning is' ineffectual to alter the nature of the action, for negligence may. be an indispensable element in the constitution of the nuisance. People v. Sands, 1 Johns. 78; Simmons v. Everson, 124 N. Y. 319, 20 N. E. 911; Campbell v. Foundry Co., 73 Hun, 576, 26 N. Y. Supp. 165. There was therefore no alternative of claims, between which the. plaintiff was compellable to elect; but, as he chose to stand on they ground of…
2Cases cited10 opinions
- City of Rochester v. . CampbellNew York Court of Appeals · 1890
- McNally v. Phœnix InsuranceNew York Court of Appeals · 1893
- Bohan v. Port Jervis Gaslight Co.New York Court of Appeals · 1890
- Ahern v. . SteeleNew York Court of Appeals · 1889
- Irvine v. . WoodNew York Court of Appeals · 1872
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3Cited by2 opinions
- Berger v. ContentAppellate Terms of the Supreme Court of New York · 1905
- Kuechenmeister v. BrownNew York Court of Common Pleas · 1895