Opinion
November, 1927.
Appeal from Supreme Court, Erie County.
Present — Clark, Sears, Crouch, Taylor and Sawyer, JJ. Order reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to plead over within twenty days upon payment of the costs of the motion and of this appeal.
The complaint alleges that plaintiff's intestate was drowned and that the several defendants were, in various ways, negligent and careless in the operation and maintenance of the bathing beaches. There is no allegation that the drowning was caused by any negligent act or omission of defendants, nor are any facts alleged from which such an inference could be drawn. Moreover, the allegations of the complaint are insufficient to show that the defendants Miller were tort feasors jointly with the defendant town of Brant, or that plaintiff's intestate was, as to defendants Miller, an invitee. At most she was as to them a bare licensee and no act of affirmative negligence on their part is alleged. ( Vaughan v. Transit Development Co., 222 N.Y. 79. And see statement of rule as given in the charge in Hall v. International Railway Co., 184 App. Div. 925; affd., 227 N.Y. 619, as cited in Flaherty v. Metro Stations, Inc., 202 App. Div. 583; affd., 235 N.Y. 605.) The order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to the plaintiff to plead over within twenty days. All concur.