
    Abram Kipp, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence — an action therefor cannot be sustained by proof of the defendant’s having created a nuisance — that the defendant was not misled by the complaint is immaterial.
    
    There is a plain distinction between an action for a wrong and one for negligence; one cannot declare on negligence alone and recover on nuisance.
    In an action brought against a railroad company to recover damages for injuries done to the plaintiff’s buildings and machinery by an overflow of water, caused by' the faulty construction of a railroad bridge, the complaint alleged: " That said bridge, as now constructed, is insufficient • * * * and is so unskilfully. and negligently planned * * * as to * * * form an obstruction; * * * that said, defendant in the building, erection and repairing of said bridge carelessly and negligently threw into said stream, near the west side of said bridge, a number of large stones, which stones form an obstruction, * * *” and “_that by reason of the aforesaid premises and the backing up of the said water by said bridge, plaintiff has suffered great damage.”
    The court charged: "Now, of course, if the defendant did negligently in any manner, construct that bridge and is guilty of negligence and that that negligence caused this overflow of this property, the defendant would be liable on the ground of negligence; but if you find that if the defendant was not guilty of any negligence at all, but very carefully interfered with this property right of the plaintiff and obstructed it, the plaintiff would still have a cause of action against the defendant for obstructing the stream.”
    Held, that the action was based solely upon the ground of negligence, and that, , in the absence of an amendment to the complaint, the plaintiff could not recover upon any other theory;
    That the latter portion of the charge quoted was erroneous, as the jury might logically infer therefrom that the plaintiff might recover irrespective of any negligence on the part of the defendant;
    That it was immaterial that the defendant was probably not misled by the form of the complaint.
    Hirschberg, J., dissented.
    Appeal by the defendant, The 'New York Central and Hudson River Railroad Company, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 24th day of - November, 1902, upon the verdict of a jury for $770, and also from, an order entered in said clerk’s office on the 6th day of December, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Ira A. Place [Robert A. Futschbock with him on the brief], for the appellant.
    
      Edgar I. Ryder, for the respondent.
   Jenks, J.:

The defendant appeals from judgment upon a verdict awarding damages for injuries to plaintiff’s buildings and machinery caused by an overflow of water, due to the faulty construction of a railroad bridge. The learned judge charged the jury : “ Now, of course, if the defendant did negligently in any manner construct that bridge and is guilty of negligence and that that negligence caused this overflow of this property, the defendant would be liable on the ground of negligence; but if you find that if the defendant was not guilty of any negligence at all, but very carefully interfered with this property right of the plaintiff and obstructed it, the plaintiff would still have a cause of action against the defendant for obstructing the stream.” This was duly excepted to by the defendant. I think that the instruction, as to liability aside from any negligence, is reversible error. The action is solely for negligence. Thus the plaintiff complains: “ That said bridge, as now constructed, is insufficient * * * and is so unskilfully and negligently planned * * * as to * * * form an obstruction; * * * that said defendant in the building, erection and repairing of said bridge carelessly and negligently threw into said stream near the west side of said bridge, a, number of large stones, which stones form an obstruction, * * * ” and that by reason of the aforesaid premises and the backing up of the said water by said bridge, plaintiff has suffered great damage.” There is a plain distinction between an action for wrong and one for negligence. (Dickinson v. Mayor, etc., of City of N. Y., 92 N. Y. 584, 588, citing authorities; Fisher v. Rankin, 27 N. Y. St. Repr. 582.) One cannot declare on negligence alone and recover on nuisance. (Fisher v. Rankin, supra, and authorities cited; Wittman v. City of New York, 80 App. Div. 585,592.) The learned counsel for the defendant not only excepted to the charge as indicated, but was consistent in his attitude during the course of the trial. There is nothing in the context to indicate that the learned judge was stating possible remedies by way of illustration of legal rights or was affording general information of legal reliefs. For aught that appears he was charging the jury as to the law of the case in hand, and, to say the least, any layman might logically infer from this language that the plaintiff might recover in that case irrespective of any neglect by the defendant. I cannot find that the error, subsequently, was corrected or was cured. It is quite immaterial that the defendant was probably not misled. (Southwick v. First National Bank of Memphis, 84 N. Y. 420, 429.) The plaintiff did not seek the eure of amendment at the trial. Moreover, in Fisher.v. Rankin (supra), which also involved the questions of negligence and of nuisance, the court, per Daniels, J., says: “ But an amendment or change of that description cannot be made upon the trial, or after the trial upon the argument of an appeal. For the effect of that would be to change the action from one cause to another and different ground of action. And such a change cannot be, under the authorities, made tó support the judgment from which an appeal lias been taken. (Davis v. N Y., etc., R. R. Co., 110 N. Y. 646; 17 N. Y. State Rep. 172.) ” (See, too, Page v. D. & H. C. Co., 76 App. Div. 160.) The harm of the error to the appellant is more manifest than frequently appears in violations of the fundamental rule of secundum allegata etprobata. For if the defendant constructed this bridge pursuant to authority, then it might cogently contend that in the absence of proof of its lack of due care, under the circumstances it was protected by the principle of Bellinger v. New York Central Railroad (23 N. Y. 42), and the many judgments which have followed in its wake.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Goodrich, P. J., and Woodward, J., concurred; Hirsohberg, J,, read memorandum for affirmance.

Hirscbherg, J. (dissenting):

I dissent. I think the language tif the learned trial justice could liardly be misconstrued by the jury, viz., that the defendant would be equally liable for the obstruction, if there be an obstruction, whether there was negligence in the actual work of constructing the bridge or whether the bridge was constructed with care. As the gist o'f the suit was for the obstruction of the stream on the ground that the openings in the bridge were not large enough to allow the . free flow, it could make no difference whether the openings were made small with care or otherwise. In either case it would be negligence in a legal sense.

Judgment and order reversed and new trial granted, costs to •abide the event.  