Wolfe v. Edwards , 147 N.Y.S.2d 188 ( 1955 )

— Appeal from an order of a Trial Term, Supreme Court, Albany County. Plaintiff was a guest in defendants’ home and slipped and fell on the bathroom floor sustaining injuries. A jury disagreed on the trial of the action for negligence and the court at Trial Term ordered a new trial, denying the motion to dismiss. Defendants appeal from the order denying their motion. There is proof that the bathroom floor was cleaned with a detergent which was not washed off with clear water before wax was applied, and that this was not good practice and would cause the floor to -be slippery; that the application of wax by pouring it on the floor from a container and applying it before the floor was dry was not good practice and could cause the floor to become slippery. There is also proof that there was accumulation of water on the floor at the time of accident and that the usual bathroom mat had been replaced by another kind of mat usually placed in a bedroom. In the light of the decisions in Curren v. O’Connor (304 N. Y. 515) and Faber v. Meiler (278 App. Div. 849) it would seem that the record presents a triable issue and the complaint ought not be dismissed as a matter of law. Even in Kirkup v. Kirkup (279 App. Div. 803) where the court indicated it would not favor a recovery, a new trial was ordered on reversal and the complaint was not dismissed. The right of the defendants to appeal from the order denying their motion to dismiss is undoubted, even though no judgment has been entered in view of the disagreement of the jury. (Civ. Prac. Act, § 457-a.) Order unanimously affirmed, with $10 costs. Present — Poster, P. J., Bergan, Coon, Halpern and Zeller, JJ.