Opinion
March 19, 1941.
Appeal from an order denying defendant's motion to dismiss the complaint wherein it is alleged in substance that an automobile owned by defendant, and operated by his employee, was so negligently driven on the highway as to collide with plaintiff's automobile causing damage thereto.
Defendant-appellant cites Newell v. Woodward ( 241 App. Div. 786) wherein a similar complaint, having to do with the maintenance and operation of an amusement park, dance hall and the adjacent parking space causing plaintiff to fall into a ravine, was held bad because "the negligence under such an allegation might consist of any one of a wide variety of acts." In this case the complaint charged one negligent act, the careless operation of a motor vehicle. ( Peterson v. Eighmie, 175 App. Div. 113.) The doctrine of Turner v. Craney ( 254 App. Div. 919) should not be extended beyond the facts of that case.
Order affirmed, with ten dollars costs and disbursements.
Hill, P.J., Heffernan, Schenck and Foster, JJ., concur; Bliss, J., dissents.
As recently as 1938 in Turner v. Craney ( 254 App. Div. 919) this court held that a complaint in almost the identical language of the one now before us did not state facts sufficient to constitute a cause of action. It was then stated that in such complaint no intimation of what it was proposed to prove the defendant did or omitted to do was stated and the complaint was, therefore, insufficient. The language of that opinion applies with equal force to the complaint now before us and there is no way of telling from this complaint what the defendant did or failed to do that constituted negligence.