
    Katherine Ship, Respondent, v. Percy Fridenberg and Paul Fridenberg, Defendants, Impleaded with Robert Fridenberg, Appellant.
    First Department,
    June 11, 1909.
    Practice — motion for judgment on pleadings — leave to renew after bill of particulars arid examination before trial — pleading — negligence— injury by revolver to which infant had access.
    A motion for judgment on the pleadings pursuant to section 547 of the Code of Civil Procedure must be determined solely on the pleadings and they cannot in any way be aided by affidavits or testimony. Hence, such motion should not be denied with leave to renew after searching the pleadings by an application for particulars or after searching the conscience of the plaintiff by an examination before trial. ,
    A complaint which, in substance, alleges that the defendant having employed the plaintiff as a nurse for his wife, negligently permitted a loaded revolver to remain in an unlocked bureau drawer, to which his infant nephew had access, and that the infant took possession of the revolver and intentionally inflicted injury upon the plaintiff, does not state a cause of action where there is no charge that the defendant owned the revolver or placed it in the drawer.
    Appeal by the defendant, Robert Fridenberg, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of Rew York on the 11th day of January, 1909.
    
      Leopold B. Pollak, for the appellant.
    
      Archibald Foote Clark of counsel [Gillette & Clark, attorneys] for the respondent.
   Clarke, J.:

Appeal from an order of the Special Term denying a motion by the defendant Robert Fridenherg for judgment on the pleadings pursuant to section 547 of the Code of Civil Procedure for .the dismissal of the complaint as against him. The order provides as follows .: Ordered, that the said motion for judgment on. the pleadings be and the same hereby is denied, without prejudice, to renewal after searching the pleading of. the plaintiff by an application for particulars or her conscience by examination.”

The complaint alleges that defendant Percy Fridenherg was a householder at 60 East Fifty-eighth street, borough of Manhattan, and that defendants Robert Fridenherg, his brother, and Paul Fridenberg, the son of Robert, were residents in the household of Percy; that Paul was an infant of- about thirteen years; that the plaintiff was employed by Robert as a nurse for his wife Miriam, an .invalid ; that prior to June 18, 1907, Percy Fridenherg and Robert-Fridenherg negligently permitted Paul to use and play with a dangerous weapon, to wit,, a revolver; and that. Percy Fridenberg, without the knowledge of plaintiff, negligently placed. said revolver, loaded with ball cartridges, in an unlocked bureau in the room to which plaintiff- and Miriam Fridenherg were assigned; that. Percy Fridenherg and Robert Fridenherg negligently and knowingly permitted said loaded revolver to be and remain in said room knowing that Paul had access thereto, and knowing that plaintiff and others were liable to be injured thereby; that on or about June 18, 1907, while plaintiff was lawfully in said room, the defendant Paul Fridenherg, without any just cause or provocation, took possession of said loaded revolver, and negligently and in violation of section 468 of the Penal Code of the State of Rew, York, intentionally pointed the same at the plaintiff, thereby inflicting upon plaintiff grievous injury; that by reason of the premises,, and solely by the .concurrent negligence of defendants and each of them, plaintiff suffered the injuries complained of, and demands judgment for $20,000 damages. _

That part of the order. providing that it is without prejudicé to renewal after searching the pleading of the plaintiff by an application for particulars or her conscience by examination is unjustifiable. This motion was made for judgment upon the pleadings and must be decided upon the pleadings as they existed at the time of the motion. To permit a renewal thereof after searching the conscience of the plaintiff by. examination before trial would, be idle, for, even if such examination were allowed, the testimony thereunder could not be availed of upon a motion of this character. Such testimony is for use only upon the trial. This motion is based upon and to be determined solely by the pleadings and cannot in any way be aided by affidavits or testimony. We treat, therefore, the order as denying the motion, which brings us to a consideration'of the com-' plaint and whether the facts therein stated constitute a cause, of action against the defendant Bobert Fridenberg:

What-is charged against him is that he negligently and knowingly permitted a loaded revolver to be and ‘remain in an unlocked bureau in said room, where it had been placed by the defendant Percy. Fridenberg, knowing that the defendant Paul had access thereto. It does not seem. that a cause of action against Bobert can be predicated upon the allegation that he knew theré ivas a loaded revolver in a bureau. As long as it remained where placed it was innocuous. Its presence there was not the proximate cause of the injury complained of. On the contrary, by-the further paragraph of the complaint it is alleged an intentional crime was committed by Paul. ' “6 The proximate cause of an event must be understood to be that which in. a natural and continuous sequence, unbroken by any new cause, produces that event, and without which that event would not have Occurred.’ ” (Laidlaw v. Sage, 158 N. Y. 73.)

. Plaintiff does not seek to hold- appellant on the theory that lie is the father of Paul, but because he himself was guilty of negligence. He did not own the revolver. He did hot. place it in the bureau.. It was not his room. T^6 sole claim that. I can see -is, that he should have notified plaintiff that it was- there or should have removed it. Negligence is not to be predicated upon the. happening of an accident which is not the reasonable, natural and probable result of circumstances, which, in the exercise of prudence, should have been foreseen. The mere knowledge of the presence of the revolver in the bureau cannot be held to charge the appellant with the consequences of the independent act of a third person who took the revolver from the drawer and discharged it. Such knowledge was not the proximate cause of said act, nor was the result reasonably to be anticipated.

It follows, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  