3 A.D.2d 998 | N.Y. App. Div. | 1957
Order denying the motion to dismiss the complaint or the second cause of action for insufficiency, unanimously modified by dismissing the second cause of action, without costs to either party, with leave to replead. Martin v. Curran (303 N. Y. 276) is not applicable to an. unincorporated association’s unintentional tort, such as is involved in this second cause of action. Special Term correctly ruled that to require membership authorization or even ratification of such an unintentional tort is, in effect, to attempt to transmute a negligent act into a willful wrong. This is an inadmissible result, straining both law and logic. Still the complaint is not without its inadequacies: (1) Though clearly inferable from the allegation that plaintiff entered the premises lawfully and peacefully and was assaulted without cause or provocation, plaintiff’s freedom from contributory negligence has not been affirmatively pleaded. The new complaint should reduce this inference to an affirmative statement of fact; (2) Paragraph 10 may fairly be criticized as pleading the legal conclusion of defendant’s negligence rather than spelling out the ultimate facts that constitute defendant’s alleged neglect and failure to take the necessary steps for the safety of plaintiff while on the premises. Settle order on notice. Concur — Peck, P. J., Breitel, Botein, Rabin and Frank, JJ. [5 Misc 2d 11.]