
    ZEITLIN v. MORRISON et al.
    (Supreme Court, Appellate Term, First Department.
    December 4, 1914.)
    Appeal from City Court of New York, Trial Term. Action by Yetta Zeitlin against Isidor D. Morrison and another. From a judgment for plaintiff, entered upon the verdict of a jury, defendants appeal. Affirmed. Morrison & Sehiff, of New York City (Joseph M. Broskauer, of New York City, of counsel), for appellants. Samuel S. Marcus, of New York City, for respondent.
   PER CURIAM.

Judgment affirmed, with costs.

BIJUR, J.

I dissent. The cause of action was against the firm of attorneys for negligently failing to institute a suit on behalf of plaintiff until the statute of limitations had barred it. Plaintiff’s original cause of action was against her employers, Gordon & Schlessel, for their alleged negligence, whereby a door was permitted to fall upon the plaintiff while walking in Gordon & Schlessel’s shop. On this trial, plaintiff undertook to prove that she had a valid action against Gordon & Schlessel at the time when defendants were retained by her. No proof of actual negligence on the part of the employers was attempted; plaintiff relying, and the case being submitted to the jury, upon the doctrine of res ipsa loquitur. I cannot find in the record any justification for applying that theory. Plaintiff manifestly evaded telling_ just where the door was situated, and there is, therefore, no proof in the record that it was part of the premises leased by ..Gordon & Schlessel, and certainly none that it was under their control. Whatever intimation there may be in the record is to the contrary. Thus plaintiff’s witness, testifying to an interview immediately after the accident with Mr. Schlessel, says that Schlessel told him that he had an order from the authorities to open and put the door in proper shape, and that he told the elevator man, an employe of the landlord; to fix it, and that the elevator man had been fixing it when it fell, and that Schlessel did not know how it happened to fall. As defendants repeatedly pointed out the failure of plaintiff to prove that she had a cause of action against Gordon & Schlessel, through failure to snow any negligent act on their part, and adequately excepted to the court’s refusal to recognize the point, I think that the judgment should be reversed, and a new trial granted, with costs to appellant to abide the event.  