
    Edwin J. Dresner et al., Plaintiffs, v. Riviera Association, Inc., et al., Defendants.
    Supreme Court, Special Term, Nassau County,
    March 12, 1957.
    
      Eugene G. Lamb for plaintiffs.
    
      Ira J. Greenhill for defendants.
   L. Barron Hill, J.

This motion seeks an order- under rule 90 of the Rules of Civil Practice to separately state and number the causes of action or, in the alternative, to dismiss the second and fourth causes of action for failure to state a cause of action.

The action is one to recover for injuries alleged to have occurred when plaintiff, Roslyn Dresner, boarded a launch owned and operated by defendants and a railing thereon gave way. Her husband also seeks recovery for loss of services and consortium. For convenience, only the causes of action relating to Roslyn Dresner, hereafter referred to as the plaintiff, will be discussed.

The court finds that the causes of action are sufficiently stated and numbered; they plead (1) a cause of action in negligence, (2) a cause of action for breach of an implied warranty of seaworthiness.

As to the second phase of defendants’ motion, there is no question as to the validity of the first cause of action in negligence. The objection is to the second action which seeks to plead, in behalf of a passenger, a cause of action the nature of which is liability without fault. This cause of action exists in favor of seamen and has been extended to stevedores working aboard ship. No case has been submitted to the court where this species of liability has been extended in favor of a passenger.

Oases abound, as plaintiff points out, where the question of seaworthiness of a vessel is discussed. This is an element of the negligence involved. It is elemental that a boat which is seaworthy for inland waters may well be unseáworthy for ocean waters.

Although causes of action for breach of contract exist in cases involving common carriers, e.g., Klein v. Munson Steamship Line (242 App. Div. 179), plaintiff has not attempted to plead such a cause of action.

The motion to dismiss the second and fourth causes of action is granted, with leave to plaintiffs to serve a further amended complaint setting forth any other cause of action they may have, if they be so advised, within 20 days of service of the order herein with notice of entry.

Settle order.  