Opinion
November, 1931.
Order denying motion to dismiss complaint for insufficiency reversed upon the law, with ten dollars costs and disbursements, and motion granted, without costs, with leave to plaintiff to plead anew within twenty days upon paying said costs. We are of opinion that the allegation that plaintiff was "lawfully" upon the premises of the appellants is insufficient to charge the appealing defendants with any duty in the absence of allegations of fact showing by what right plaintiff was on the said premises, whether as a tenant or an invitee or in such manner as the fact may be. ( Minnelli v. Marotta, 212 App. Div. 834.) Lazansky, P.J., Young, Kapper, Hagarty and Scudder, JJ., concur.