
    Vivian I. Mensch and Joseph Mensch, Respondents, v. Bero Engineering and Construction Corporation, Appellant, and United Paving Co., Inc., Defendant.
   Order affirmed, with ten dollars costs and disbursements. Memorandum: While we agree with the Special Term that the second cause of action alleged in the, proposed amended complaint is not subject to the objection that it fails to state a cause of action, we are of the opinion that the therein-alleged cause of action rests upon tort and not upon contract. (McMahon v. Second Ave. R. R. Co., 75 N. Y. 231, 239. See, also, 2 Williston on Contracts [Rev. ed.], § 374.) We think, however, that the allegations, in respect to the contract between the appellant and the State Department of Public Works, are proper to the end that if appellant admits or fails to deny them, respondents will be relieved of the necessity of proving them although the respondents will not be relieved of proving negligence or nuisance based on negligence in respect to the sidewalk condition which respondents claim caused the accident. All concur, except Crosby, P. J., who dissents and votes for reversal and denial of the motion. (The order grants plaintiffs’ motion for leave to serve an amended complaint in an action for damages sustained by reason of falling on a sidewalk being repaired during street construction work.) Present — Crosby, P. J., Taylor, Dowling, Harris and MeCum, JJ.  