
    Eugene Wallman et al., Plaintiffs, v. Lawrence Onish et al., Defendants.
    Supreme Court, Special Term, New York County,
    June 14, 1961.
    
      Irving Fliegler for plaintiffs. Anthony J. Falhe, Jr., for defendants.
   Abbaham N. Gelleb, J.

Plaintiffs, husband and wife, social guests of defendants, husband and wife, sue in negligence for personal injuries sustained by plaintiff wife. Plaintiffs move for summary judgment and defendants request like relief in their behalf in their answering papers.

Plaintiff wife was sitting in defendants’ kitchen talking to defendant wife while the latter was carving a turkey. In plaintiff’s affidavit in support of the motion for summary judgment she states that defendant wife “was using her knife hand to also pick up the meat which was greasy to place the meat, which she had sliced, into a plate, ’ ’ and that at no time did she take ‘ ‘ the time to remove the grease from her hands.” The knife slipped or “ was squeezed ” from her hands and landed with its sharp point on plaintiff’s right foot, causing a “ deep wound.” Defendant wife in her examination before trial confirmed the fact that she had used her right hand in carving and in transferring the meat from the serving platter, but she ivas not asked to describe the resultant condition of her hand.

It cannot be said that these circumstances in the setting in which they took place compel a finding of actionable negligence as a matter of law. Moreover, the question of contributory negligence, assuming defendant be held to be negligent, would be a close one. Since she relates and necessarily observed the manner in which the carver’s hand allegedly became greasy, plaintiff’s continuance in a position of close proximity without bringing the dangerous situation to the carver’s attention raises the issue of her own contributory negligence. But there may be considerations which might inhibit a social guest under certain circumstances from doing anything which would appear to reflect upon the actions of a hostess. All of these questions can be resolved only after a trial by the triers of the facts upon proper instructions from the court.

As to defendant husband, liability may be found on the basis of an act of negligence of his wife as his agent in preparing a dinner for his guests. The particular facts as to the occasion and the agency to bring it within the rule would have to be developed at the trial.

Accordingly, both plaintiff's’ motion and defendants’ cross motion for summary judgment are denied.  