Opinion
November, 1925.
Present — Hubbs, P.J., Clark, Davis, Sears and Taylor, JJ. Order affirmed, with ten dollars costs and disbursements.
We are of opinion that plaintiff's original complaint stated causes of action for negligence and nuisance, and that she might upon the trial have recovered on either theory, depending upon the nature of her proof. However, the plaintiff has asked to amend to amplify the allegations of the complaint as to nuisance. Having complied with the terms imposed, we think she is entitled to make such amendment. If the moving papers were technically defective it does not appear that the question was raised at Special Term, but defendant seems to have opposed the motion only on the merits. Under the circumstances, we will not consider the objections when raised here for the first time. All concur.