
    HAYES v. BROOKLYN HEIGHTS R. CO.
    (Supreme Court, Appellate Division, Second Department.
    October 8, 1909.)
    Appeal from Special Term, Kings County.
    Action by Edwin A. Hayes against the Brooklyn Heights Railroad Company. From an interlocutory judgment in favor of plaintiff, defendant appeals.
    Affirmed.
    Argued before HIRSCHBERG, P. J., and GAYNOR, BURR, RICH, and MILLER, JJ.
    D. A. Marsh, for appellant. ’
    Charles C. Clark, for respondent.
   PER CURIAM.

Interlocutory judgment affirmed, with costs.

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.” Hollis v. Brooklyn Heights R. R. Co., 128 App. Div. 821, 113 N. Y. Supp. 4. 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, 92 N. Y. 584, and kindred cases, I think this states a cause of action for negligence only.

RICH, J., concurs.  