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Eldred v. Keenan

164 A.D. 63 Court Second Department, Decision date 1914-10-16 English

Delivered by Thomas, J.:

Contents

Majority

p. 63
Carrie A. Eldred, Respondent, v. Maria Keenan, Appellant, Impleaded with James Keenan, Defendant.
Second Department,
October 16, 1914

Headnote

Pleading — complaint —negligence — fall on icy sidewalk.
A complaint which merely alleges that the defendants permitted heaps of ice to form on the sidewalk in front of their premises, with notice thereof, but without effort to arrest the accumulation or to remove the obstruction, and that the plaintiff slipped thereon and was injured, does not state a cause of action.
Appeal by the defendant, Maria Keenan, from an' order of the County Court of Queens county, entered in the office of the clerk of said county on the 17th day of June, 1914, denying her motion for judgment on the pleadings.
p. 64
Theodore J. Hearn [Edward J. Walsh with him on the brief], for the appellant.
J. Baldwin Hand [Richard B. Hand with him on the brief], for the respondent.

The complaint alleges that defendants permitted heaps of ice to form on the sidewalk in front of their premises, with notice thereof, but without effort to arrest the accumulation or to remove the obstruction, and that plaintiff slipping thereon was injured. Such passivity is not actionable wrongdoing. (Moore v. Gadsden, 93 N. Y. 12 ; Mullins v. Siegel-Cooper Co., 183 id. 129 ; City of Rochester v. Campbell, 123 id. 405, 410; Brown v. Wysong, 1 App. Div. 423 ; Rohling v. Eich, 23 id. 179; English v. Kwint, 140 id. 509; Connolly v. Bursch, 149 id. 772.)

The order of the County Court of Queens county should be reversed, with ten dollars costs and disbursements, and the motion on the pleadings for judgment for the dismissal of the complaint, with costs, granted, with ten dollars costs of the motion.

Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred.

Order of County Court of Queens county reversed, with ten dollars costs and disbursements, and the motion on the pleadings for judgment for the dismissal of the complaint, with costs, granted, with ten dollars costs of the motion.

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