Appellate Terms of the Supreme Court of New York, 1933

Maynard v. Phillips

Appellate Terms of the Supreme Court of New York · Decided November 29, 1933 · Lydon

149 Misc. 664; 267 N.Y.S. 868; 1933 N.Y. Misc. LEXIS 1731

Counsel

H. Edward Raiden [Bernard Braun of counsel], for the appellant., E. Edan Spencer [Arthur N. Seiff of counsel], for the respondent.

Opinion of the Court

Per Curiam.

The question whether this infant plaintiff was sui juris was for the jury; and the jury were authorized to find that it was not contributory negligence for this six-year-old infant to cross the street without looking for defendant’s automobile, which according to the plaintiff’s proofs was almost a block away.

Judgment and order reversed, with costs, and judgment reinstated.

Levy and Callahan, JJ., concur.

Dissenting Opinion

Lydon, J.

(dissenting). I dissent. I think the' trial judge was right in dismissing the complaint for the reasons given by him. I also think that a dismissal on the merits was proper. (Ziegler v. Railway Co., 232 App. Div. 43.)

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