O'Sullivan v. Moller

259 A.D. 830, 19 N.Y.S.2d 131, 1940 N.Y. App. Div. LEXIS 6886

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 1940
• Status: Published

Opinion

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.