
    Jacob Kratzer, Appellant, v. The Village of Saratoga Springs, Respondent.
    Judgment reversed and a new trial granted, costs to abide the event.—
   Merwin, J,:

Appeal from a judgment entered in Saratoga county dismissing the complaint upon the ground that it did not state facts sufficient to constitute a cause of action.

I am inclined to the opinion that in the complaint, disregarding the allegations of negligence, a cause of action in the nature of a trespass is stated, and that the plaintiff should have been permitted to give his evidence on that subject. The acts of the defendant are charged as wrongful. There was alleged a physical invasion of plaintiff’s premises. The case of Hay v. The Cohoes Co. (2 N. Y. 159) is recognized as good authority in St. Peter v. Denison (58 id. 416, 421); Benner v. A D. Co. (134 id. 156, 162); Booth v. R., W. & O. T. R. R. Co. (140 id. 267, 278). I, therefore, advise a reversal. Parker, P, J., and Landon, J., concurred; Herrick and Putnam, JJ., dissented Herrick, J. (dissenting): The complaint in form is one for negligence, but the plaintiff asserts that the allegations of negligence are unnecessary and harmless, and without them the facts set forth constitute an action for trespass upon real estate, and that, therefore, it is unnecessary for him to allege the facts required by section 82 of chapter 289 of the Laws of 1890. As a general rule a party coming into court and asserting one cause of action cannot recover upon another and different one. (Reed v. McConnell, 133 N. Y. 425-434.) But assuming that in the furtherance of justice a complaint may be stripped of some of the allegations which render it a complaint in one form of action, and thereby leave it a sufficient comlainfc under another form of action, I oubt even then whether this plaintiff can sustain his complaint. It may be that under the cases of Hay v. Cohoes Company (2 N. Y. 159) and Tremain v. Cohoes Company (id. 163), the plaintiff is entitled to recover upon merely showing that quarrying has been carried on by means ot blasting, and thereby stones have been thrown upon his premises, although I think the later cases of Booth v. R.,W. & O. T. R. R. Co. (140 N. Y. 267), and French v. Vix (143 id. 90), cast some doubt upon that question. But m this case we cannot assume from the complaint such a state of facts as warranted a recovery in the cases of Hoy and Tremain. While we may disregard the allegations of carelessness and negligence in the complaint in so far as they are supposed to render the action one for negligence, yet the language still remains to characterize the transactions complaind of. Quarrying per se, is not a nuisance. In the compiaint it is charged that gunpowder, dynamite and other explosives of a high character were employed by the defendant, its officers, agents and servants, in a careless and negligent manner, and that they carelessly and negligently blasted the rock on the premises occupied by said village, so that we may infer from the language of the complaint that the injuries would not have happened if the explosives had not been carelessly and negligently used, or the blasting carelessly and negligently done, rather than that the injuries would have r suited from the quarrying from the nature of the business itself. And again, it is alleged in the complaint that the dwelling and property of the plaintiff has been injured and rendered less valuable in consequence of the wrongful and negligent acts of the defendant, its officers, agents and servants. Whether we consider the action as one of negligence, of nuisance or of trespass to real estate, the fact remains that the plaintiff alleges that the injuries complained of have been caused by the negligence of the defendant, its officers, agents and servants. The section of the law referred to does not require the notice to be given merely in an action of negligence, but where the injury done to person or property is Alleged to have been sustained by reason of the negligence of the village or of any officer, agent or employee.” (§ 82. chap. 289, Laws of 1890.) The plaintiff in his complaint alleges that the injuries were sustained by reason of the negligence of the village, its officers, agents and servants, so that lie is brought distinctly within the provision of the law requiring notice.—Judgment should, therefore, be affirmed, with costs. Putnam, J., concurred.  