This action was brought against the city of New York and the board of education of the city of New York to recover damages for personal injuries alleged to have been sustained by the plaintiff while attending one of the public schools in the city of New York. At the beginning of the trial plaintiff’s counsel elected to discontinue the action as against the city of New York and to proceed against the board of education alone.
Upon the pleadings and opening of plaintiff’s counsel the complaint was dismissed upon the merits, and from the judgment entered to that effect plaintiff appeals.
It is sought to sustain the judgment on the ground that the action was brought to recover damages caused by the maintenance of a nuisance. The complaint clearly states a cause of action for negligence. It charges that while the plaintiff was a scholar in one of the public schools of the city of New York he was directed by the authorities and teachers in said school to engage in certain games and exercises in the playground and “ that while so engaged plaintiff because of the defective, worn and dilapidated condition of the flooring of said playground, and the defective construction of the same was caused to fall, sustaining severe, painful and permanent injuries; * -x- * that the said defendants maintained said school building and the playground and flooring thereof aforesaid as a public school and there received and instructed many pupils of which plaintiff was one, for a long time after the same was, and was well known to the defendants to be in an unsafe and dangerous condition and it was in said condition at the time of the accident above described.”
Not only the complaint, but the opening of plaintiff’s counsel as well indicates that a recovery was sought on the ground that the injuries were caused solely by defendant’s negligence. It is true, after the complaint had been dismissed and an exception taken to the ruling, plaintiff’s counsel asked to go to the jury on the ground that the allegations of the complaint were sufficient to charge the board of education with maintaining a nuisance, but this request did not change the allegations of the complaint, or what counsel stated in the opening would be proved. Where a complaint is dismissed upon the opening of *134plaintiff’s counsel, not only the complaint, but also the opening, must receive a liberal interpretation. (McCarton v. City of New York, 149 App. Div. 516.) After the court had dismissed the complaint, counsel for plaintiff was not required to ask leave to go to the jury because the rights of his client were fully preserved by resting on the exception to the ruling. The only importance to be attached to the request is that in the opinion of counsel if the complaint did not state a cause of action for negligence, then it might be considered as stating one for a nuisance; in other words, the client having failed upon one theory, it was sought to preserve his rights by trying to adopt another one.
The judgment appealed from, therefore, is reversed and a new trial ordered, with costs to appellant to abide event.
Ingraham, P. J., Laughlin, Scott and Dowling, JJ., concurred.
Judgment reversed and new trial ordered, with costs to appellant to abide event. Order to be settled on notice.