Swetlow v. Zindorest Park

SULLIVAN, J.

Warren S. Tenney for plaintiffs. Anne J. Mathes for defendant. SULLIVAN, J. Plaintiffs were paying guests of the defendant at its place of business, comprising several buildings and recreational facilities, known as Zindorest Park in Monroe, New York. Upon arrival they registered in the main building. The desk clerk assigned each plaintiff to a single room in the building designated the Lake House. (Millhiser v. Beau Site Co., 251 N.Y. 290.) Upon the trial there was no proof of posting of notice of any kind anywhere upon the defendant's property. In addition it appears that to avail itself of the statutory protection, the defendant, and not the plaintiffs, has the obligation of pleading and proving that the fire was occasioned without its fault (Steiner v. O'Leary, 186 Misc. 236, affd. 186 Misc. 577). There is no such pleading or proof in this action. Justice requires that the verdict be set aside and the defendant made to respond. The plaintiffs' motion for a direction of a verdict in their favor is granted. The plaintiff Swetlow is awarded the sum of $465 and the plaintiff Cohen, $351.70. Exceptions to the defendant. Ten days' stay; thirty days to make a case.