Opinion
January 18, 1943.
Present — Close, P.J., Carswell, Johnston, Adel and Taylor, JJ.
Action to recover damages for personal injuries sustained by appellants when an observation platform around a bath house on property, the title to which is in defendant, as trustee, collapsed while they were standing or walking on it. The court, without objection, reserved decision on defendant's motions to dismiss the complaint made at the close of plaintiffs' case and at the close of the entire case. The jury rendered verdicts in favor of appellants. The court set aside the verdicts and granted the motion to dismiss made at the close of plaintiffs' case. Judgment dismissing the complaint, in so far as appealed from, unanimously affirmed, with costs. In our opinion appellants were at most mere licensees to whom defendant owed the duty only of refraining from active, wilful or wanton negligence. ( Morse v. Buffalo Tank Corp., 280 N.Y. 110; Mendelowitz v. Neisner, 258 N.Y. 181.) There is no proof that the injuries sustained by appellants were the result of any affirmative or wilful negligence on the part of defendant. It is unnecessary to determine whether a trustee under the Schackno Act is liable for passive negligence.