
    Edwin A. Hayes, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Pleading — complaint.
    
    Appeal by the defendant from an interlocutory judgment in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of January, 1909.
   Interlocutory judgment affirmed, with costs. No opinion. Hirschberg, P. J., Gaynor and Miller, JJ., concurred; Burr, J., read for reversal, with whom Rich, J., concurred.

Burr, J.

(dissenting): I think that the demurrer should have been overruled. The character of the action must be determined by the facts alleged, and not by the mere use of the words “ wrongful ” or “ negligent.” (See Hollis v. Brooklyn Heights R. R. Co., 128 App. Div. 821.) The allegations of the complaint show clearly that at most there was only an act of omission on the part of defendant, and not one of commission. The defendant did not “ cause ” the hole in the street, it only “ suffered ” it to be there. Within the authority of Dickinson v. Mayor, etc., of City of N. Y. (92 N. Y. 584) and kindred cases, I think this states a cause of action for negligence only. Rich, J., concurred.  