Schweitzer v. Mindlin — 248 N.Y. 560

Majority

p. 560

Samuel B. Schweitzer, Respondent, v. Max Mindlin, Appellant.

Headnote

Pleading — negligence — motor vehicles — complaint alleging negligence in driving plaintiff past an arsenal where explosives were stored as a result of which he was injured by an explosion therein does not state cause of action.

Schweitzer v. Mindlin, 222 App. Div. 738 , reversed.

(Argued April 30, 1928;

decided May 11, 1928.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 23, 1927, which affirmed an order of Special Term denying a motion for a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The complaint alleged that while plaintiff was riding as a passenger in defendant’s automobile, the car was negligently driven past an arsenal where explosives were stored and plaintiff was injured by an explosion which occurred in said arsenal.

The following question was certified: “ Does the complaint herein state facts sufficient to constitute a cause of action? ”

Lyman A. Spalding, Arthur McCausland and William J. Nolan for appellant.

George Eilperin and Habeeb Abokair for respondent.

Order of Appellate Division and that of Special Term reversed and defendant’s motion for judgment granted, with costs in all courts. Question certified answered in

p. 561

the negative. Held, that the complaint does not state facts sufficient to constitute a cause of action in that it fails to state any facts from which an inference of negligence is possible.

Concur: Cardozo, Ch. J., Pound, Crane, Andrew's, Lehman, Kellogg and O’Brien, JJ.