
    Ettie Einson, Respondent, v. The North River Electric Light and Power Co., and The New York Gas & Electric Light, Heat & Power Co., Appellants.
    (Supreme Court, Appellate Term,
    February, 1901.)
    Election — Upon the trial as to cause of action.
    Where the defendant has made no motion in the matter before the trial, it is not erroneous for the court to refuse to make the plaintiff elect at the opening of the case whether she will proceed for negligence or upon the ground of nuisance, and it is sufficient that her election was made at the close of the evidence.
    Appeal from a judgment of the Municipal Court of the city of Few York, second district, borough of Manhattan.
    Beardsley & Hemmens, for appellants..
    Lenney & Donovan, for respondent.
   O’Gorman, J.

The testimony offered by the plaintiff clearly required the submission of this case to the- jury. Clarke v. Nassau Electric R. R. Co., 9 App. Div. 51; O’Flaherty v. Same, 34 id. 75; Dwyer v. Buffalo General Electric Co., 20 id. 124. Indeed, this much seems to have been conceded by the defendants’ failure to except to the court’s refusal to dismiss at the close of the entire case. Rusher v. Brennan, 29 Misc. Rep. 142; 60 N. Y. Supp. 283. The charge of the learned justice was fair and correct, and as favorable as the defendants had a right to expect. Fo error was committed in refusing to compel the plaintiff to make her election, at the opening of the case, as to whether she would proceed on the ground of negligence, or on the ground of a nuisance. The election was made at the close of the testimony, and the question as to when a party will he required to indicate an election upon the trial rests within the discretion of the court. As said in Tuthill v. Skidmore, 124 N. Y. 148, When, as in the case at bar, the inconsistency plainly appears on the face of the complaint, the defendants should, before answering, move that the plaintiffs be compelled to elect. Cassidy v. Daly, 11 Wkly. Dig. 222. If in such a case the defendant lies by until the trial and then moves, the court may in its discretion wait until part or all of the evidence is taken before deciding the motion.” This appeared to be the only point strenuously urged upon the argument by eóunsel for the appellants, and it is quite obvious his contention cannot be upheld. We have examined the other errors assigned, but they are all without merit, and the judgment appealed from must be affirmed.

Andbews, P. J., and Blanchaed, J., concur.

Judgment affirmed, with costs.  