Majority
p. 830Patrick O’Sullivan and Katherine O’Sullivan, Appellants, v. Frederick Moller, William Moller, Henry Moller and Sophie Moller, as Trustees under the Last Will and Testament of William Moller, Deceased, Respondents.
In an action by the plaintiff-wife to recover damages for personal injuries sustained when she slipped on a stairway made wet by rain water, and by her husband for loss of services and expenses, judgment dismissing the complaint at the close of plaintiffs’ case unanimously affirmed, with costs. We agree with the learned trial court that plaintiffs failed to establish negligence on the part of the defendants, but there is an additional reason why the judgment must be affirmed. The action is against the defendants solely in their representative capacity. Such an action does not lie. (Kirchner v. Muller, 280 N. Y. 23 , 28.) Present — Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ.
Cases cited
- Kirchner v. Muller 280 N. Y. 23 at 28 p. 830