Opinion
Argued November 18, 1952
Decided December 5, 1952
Appeal from the Supreme Court, Appellate Division, Second Department, GALLAGHER, J.
Joseph F. Curren, in person, and John McKim Minton for appellants. Samuel E. Swiggett for respondents.
Plaintiff wife brought this action to recover damages for personal injuries; her husband, in a companion cause of action, sues for medical expenses and loss of services incidental thereto; both charge defendants with negligence. By two separate motions, each defendant challenges the legal sufficiency of the complaint under rule 106 of the Rules of Civil Practice. Special Term denied their motions; the Appellate Division reversed and granted the motions to dismiss. If, of course, in any aspect of the facts stated, plaintiffs are entitled to recovery, the complaint should not have been dismissed ( Pomerance v. Pomerance, 301 N.Y. 254).
We agree with the Appellate Division that, under the allegations of the challenged pleading, plaintiffs were social guests of defendants ( Sheingold v. Behrens, 275 App. Div. 686, 276 App. Div. 973, motion for leave to appeal denied 301 N.Y. 816; Roth v. Prudential Life Ins. Co., 266 App. Div. 872; Vaughan v. Transit Development Co., 222 N.Y. 79; 4 Shearman and Redfield on Negligence, § 781; Prosser, Torts, p. 627). However, according the allegations of the complaint a liberal construction, as required by section 275 of the Civil Practice Act, we cannot say as a matter of law that upon no theory of proof could a recovery be predicated. Plaintiffs' evidence may not be pleaded (Civ. Prac. Act, § 241). Our courts have been liberal with respect to the sufficiency of complaints in negligence actions, and particularly so in the absence of a bill of particulars.
While it is well settled that the mere polishing of a floor, thereby creating a slippery condition, is not negligence, even as to an invitee ( Nelson v. Salem Danish Lutheran Church, 296 N.Y. 870; Batten v. Tobey, 318 Mass. 64; Cutro v. Scranton Medical Arts Bldg., 329 Pa. 382; Brown v. Davenport Holding Co., 134 Neb. 455; Nelson v. Smeltzer, 221 Iowa 972), it is nevertheless possible that plaintiffs may be able, upon a trial, under the allegations of paragraphs second and sixth of the complaint, to submit evidence entitling them to recover ( Higgins v. Mason, 255 N.Y. 104, 108-109; Faber v. Meiler, 278 App. Div. 849). In the cases relied on by the Appellate Division ( Sheingold v. Behrens, supra; Roth v. Prudential Life Ins. Co., supra, as well as Faber v. Meiler, supra), the parties at least were permitted to go to trial.
The judgment should be reversed and the orders of Special Term affirmed, with costs in this court and in the Appellate Division.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE and FULD, JJ., concur.
Judgment accordingly.