
    Helen McCluskey, Respondent, v. Belle B. Wile, Appellant.
    First Department,
    May 12, 1911.
    Pleading — complaint stating action for negligence rather than for nuisance — Statute of Limitations — allowing dog of tenant to remain in hallways of apartment house — nuisance.
    A. complaint which, in substance alleges that the defendant, owner of an apartment house in which the plaintiff resided, “unlawfully, .négligentlyand carelessly permitted á certain dog, the property of one of the tenants * * * to lie and remain about the hallways * * * so as to be dangerous to * * * persons traversing said hallways * * * and to become a nuisance, as defendant weE knew,” and that the defendant omitted to light the haEways, so that, without negligence on her part, and by reason of “the aforesaid negligence and unlawful acts of the defendant,” the plaintiff tripped upon the dog and received, injuries, states a cause of action based upon neghgence rather than one for the maintenance of a nuisance. Hence, it is a defense to such complaint to set out the Statute of Limitations governing actions for negligence.
    A plaintiff guEty of such duplicity in pleading cannot avoid the defense of the Statute of Limitations to actions for negligence on the ground that she also characterized her action as one for a nuisance. .
    The liberal rule of construing pleadings attacked on demurrer does not apply to a case where the ambiguous pleading is itself the basis of an attack upon an answering pleading.
    The act Of the landlord in aEowing the dog of a tenant to remain in the . haEways of an apartment house was neither a public nor a private nuisance.
    ¡Nuisance involves the element of positive wrongdoing as distinct from mere acts of carelessness, whether of omission or commission.
    Appeal by the defendant, Belle B. Wile, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yew York on the 19th day of December, 1910, upon the decision of the court, rendered after a trial at the. Yew York Special Term, sustaining the plaintiff’s demurrer to a separate defense setting up the Statute of Limitations.
    
      Leon N. Futter, for the appellant.
    
      James F. Donnelly, for the respondent.
   Miller, J.:

If the action is for negligence the Statute of Limitations is well pleaded. The respondent, however, asserts that the complaint sets forth a cause of action for nuisance. It is alleged that the defendant, the owner of an apartment house in which the plaintiff resided, “unlawfully, negligently and carelessly permitted a certain dog, the property of one of the tenants in said premises, to lie and remain about the hallways, lobbies and staircases of said premises, so as to be dangerous to the life and limb of persons traversing the said. hallways, lobbies and staircases, and .to become a nuisance, as defendant well knew; ” that the defendant omitted to light the hallway, and that “without fault or negligence on her part, and solely owing to the aforesaid negligence and unlawful acts of the defendant,” the plaintiff tripped upon the said dog, which she could not see because of the failure to light the stairway, and was injured.

There. can be no doubt whatever that the plaintiff has attempted to state a cause of action for negligence, and now seeks to get rid of the defense of the Statute of Limitations on the ground that she has also characterized her action as one for nuisance. A party ought not to be permitted to take advantage of such duplicity in pleading. A good defense to a cause of action plainly attempted to be stated ought not- to be held bad merely because the plaintiff has put words in her complaint which'might be appropriate to some other cause of action. The liberal rule of construing: pleadings attacked by demurrer does not apply in a case where the ambiguous pleading is itself the basis of 'an attack upon-an answering’ pleading. The plaintiff plainly invited the defendant to answer a .complaint for negligence and she should he held to that view of the complaint, at-least in testing the sufficiency of the defense upon her demurrer' to it. .

It is -not quite certain what the plaintiff claims was the proximate cause of her injury, the presence of the dog or the absence of the light. -But she evidently relies upon the combi-, nation of the two. The distinction between negligence and nuisance is not always easy, to make, as the same act frequently constitutes both. (Hogle v. Franklin Manufacturing Company, 199 N. Y. 388.) Certainly the case does not involve a public nuisance, and it has not yet been held that one who either suffers or permits a dog to lie in a private hallway, even though used in common by different tenants of an apartment house, is guilty of creating a private nuisance. The plaintiff undertakes to distinguish this case from- Hayes v. Brooklyn Heights R. R. Co. (200 N. Y. 183), which is relied upon by the appellant, by the-distinction between the words “suffer” and “permit.” But the decision does* not turn upon such narrow ground. Private-nuisances are ordinarily considered as injuries to property rights, a wrongful, unreasonable and unlawful use of one’s premises, so as to interfere with the comfortable enjoyment of his neighbor’s premises. It has, however, been said by the Court of Appeals of this State that “ a private nuisance is any thing unlawfully or tortiously done to the hurt or annoyance of the person, as well as the lands, tenements and hereditaments of another.” (Swords v. Edgar, 59 N. Y. 28, 34.) It is certainly not in and of itself unlawful or wrongful to suffer or permit a dog to lie in a hallway, though it might possibly he a careless thing to. do. Nuisance involves the element of positive wrongdoing as distinct from mere acts of carelessness, whether of omission or commission, It was decided in Hayes v. Brooklyn Heights R. R. Co. (supra) that suffering a hole to remain in that part of a public street which it was the duty of the defendant occupying it' to keep in repair, was simply an act of negligence. A fortiori “permitting” a dog to lie in the hallway of an apartment house does not .amount to more than negligence, if it amounts to that. •

The interlocutory judgment should be reversed, with costs, and the demurrer overruled, with costs, with leave to plaintiff to withdraw demurrer on payment of costs in this court and in the court below.

Ingraham, P. J„ McLaughlin, Scott and Dowling, JJ., concurred.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to plaintiff to withdraw demurrer on payment of costs in this court and in the court below.  