Opinion
June 17, 1946.
Action by plaintiff wife to recover damages for personal injuries. Companion action by plaintiff husband for expenses and loss of services. Judgment for plaintiffs reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. Plaintiffs did not establish actionable negligence. The fact that a floor is slippery by reason of its smoothness or polish, in the absence of proof of negligent application of wax or polish, does not give rise to a cause of action. ( Kline v. Abraham, 178 N.Y. 377, 380; Abbott v. Richmond County Country Club, 211 App. Div. 231, affd. 240 N.Y. 693.) In the cases upon which plaintiffs rely there was proof of the presence of ridges of soft wax, skid marks or lumps of wax. There is no such proof here. On the contrary, the proof is that there were no marks on the floor at the place where the plaintiff wife claims she fell and that many others had been using the floor from the time it was refinished, on Friday evening, until the following Monday, when the accident occurred. It further appears that the waxing was done in a competent workmanlike manner, and the condition was not of an unusual or dangerous character. Lewis, P.J., Carswell, Johnston, Adel and Aldrich, JJ., concur.