253 A.D. 894 | N.Y. App. Div. | 1938
Order denying motion of defendant Tompkins Bus Corporation to dismiss the complaint on the ground it does not state facts sufficient to constitute a cause of action as against that defendant, reversed on the law, with ten dollars costs and disbursements, and the motion to dismiss granted, with leave to plaintiff to serve an amended complaint within ten days from the entry of the order hereon upon payment of such costs. Liability is sought to be east upon defendant Tompkins Bus Corporation, particularly by reason of the allegations of paragraphs “ ninth ” and “ eleventh ” of the complaint. While paragraph “ ninth ” alleges that said defendant maintained a depot or terminal on the viaduct at the St. George ferry entrance for the purpose of permitting its passengers to board or alight from its buses, there is no allegation that decedent had just been or was about to become a passenger, or that said defendant owed some other duty to decedent. Although paragraph “ eleventh ” contains a conclusion of law, it nevertheless does not state facts which create any liability upon the part of said defendant. It had covenanted with somebody to remove the ice and snow from the viaduct and more particularly from that part thereof used as a means of ingress to and egress from its buses. This covenant was not for the benefit of third parties. Lazansky, P. J., Davis, Johnston and Taylor, JJ., concur; Carswell, J., concurs in result.
