Winbush v. City of Mount Vernon

2 A.D.2d 893 | N.Y. App. Div. | 1956

Action to recover damages for personal injuries and for wrongful death alleged to have resulted from a fire in an apartment building owned and operated by appellant. The appeal is from an order denying appellant’s motion for judgment on the pleadings. Order reversed, without costs, motion granted, and complaint dismissed, with leave to serve an amended complaint within 20 days after entry of the order hereon. The present complaint, supplemented by the bill of particulars, alleges that appellant allowed unauthorized persons into its building and that such unauthorized persons caused the fire therein. There are no factual allegations to show that appellant, in allowing the unauthorized persons in the building, should have foreseen that they would cause a fire. Nor is there any allegation with respect to violation by appellant of any ordinance or code which respondents are entitled to invoke and which would constitute the proximate cause of the fire. Nolan, P. J., Beldoek, Murphy, Ughetta and Hallinan, JJ., concur.