
    Fourth Department,
    November, 1927.
    Joseph Wasmer, as Administrator, etc., of Eva Wasmer, Deceased, Respondent, v. Town of Brant, Defendant, Impleaded with Henry Miller and Another, Appellants, and Another, Defendant.
    
      Negligence — complaint insufficient in action for death caused by drowning at bathing beach — no allegation of negligence or that several defendants were joint tort feasors ■— intestate was licensee — no allegation of affirmative negligence.
    
    Appeal from an order of the Supreme Court, entered in the Erie county clerk’s office on June 24, 1927.
   Per Curiam:

The complaint alleges that plaintiff’s intestate was drowned and that the several defendants were, in various ways, negligent and careless in the operation and maintenance of the bathing beaches. There is no allegation that the drowning was caused by any negligent act or omission of defendants, nor are any facts alleged from which such an inference could be drawn. Moreover, the allegations of the complaint are insufficient to show that the defendants Miller were tort feasors jointly with the defendant town of Brant, or that plaintiff’s intestate was, as to defendants Miller, an invitee. At most she was as to them a bare licensee and no act of affirmative negligence on their part is alleged. (Vaughan v. Transit Development Co., 222 N. Y. 79. And see statement of rule as given in the charge in Hall v. International Railway Co., 184 App. Div. 925; affd., 227 N. Y. 619, as cited in Flaherty v. Metro Stations, Inc., 202 App. Div. 583; affd., 235 N. Y. 605.) The order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to the plaintiff to plead over within twenty days. All concur. Present — Clark, Sears, Crouch, Taylor and Sawyer, JJ. Order reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to plead over within twenty days upon payment of the costs of the motion and of this appeal.  