228 A.D. 833 | N.Y. App. Div. | 1930
Judgment of foreclsure and sale in favor of the plaintiffs modified so as to provide that it be without prejudice to the defendant’s prosecuting her cause of action at law founded upon the defense and counterclaim herein, and as thus modified unanimously affirmed, without costs. The questions propounded, designed to elicit proof that the alteration of the chimney was a structural change and that the structural change was of a character that violated the Building Code and constituted a nuisance, in so far as they were not allowed, were improper in form or were not propounded to witnesses competent to testify to the evidentiary facts upon which might be predicated a conclusion that the reconstruction was in violation of the Building Code and constituted a nuisance and resulted in the fire with consequent damage to the defendant. In other words, the defendant was not prevented from proving the defense and counterclaim, hut the facts needed to sustain the defense and counterclaim were not adduced through the medium of properly framed questions propounded to witnesses competent to testify to the facts. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will he made. Present — Lazansky, P. J., Young, Carswell, Scudder and Tompldns, JJ. Settle order on notice.
