Kulovany v. Ohrbach's Inc.

Action in the City Court of the City of New York, County of Queens, by an infant to recover damages for personal injuries sustained while on a moving escalator in a department store operated by Ohrbach’s Inc., and by her mother for medical expenses. Ohrbach’s Inc. served a third-party complaint on Otis Elevator Company, alleging active negligence and breach of contract. The mother’s cause of action and the third-party complaint were dismissed and the jury rendered a verdict in favor of the infant. Judgment was entered accordingly. The appeal is by permission of this court from an order of the Appellate Term dated February 28, 1956, affirming the judgment. The notice of appeal states that appeal is also taken from the judgment of the City Court and from the order of the Appellate Term dated March 29, 1956 *998denying a motion for reargument or for leave to appeal to this court. Order dated February 28, 1956, insofar as it affirms the judgment in favor of the infant, reversed, without costs, and complaint dismissed. In all other respects, ordeq unanimously affirmed, without costs. There is no proof that the accident happened because of the negligence of Ohrbaeh’s Inc., nor is there proof of facts from which it can reasonably be inferred that the accident could not have happened except for such negligence. Ross v. Bloomingdale Bros. (205 Misc. 104) is distinguishable on the facts. Appeal from judgment and from order dated March 29, 1956 dismissed, without costs. No appeal lies therefrom (see, Civ. Prac. Act, § 623, subd. 1). Present — Nolan, P. J., Wenzel, Beldoek, Murphy and Kleinfeld, JJ.