BOLSENBROEK v. TULLY & DI NAPOLI


12 A.D.2d 376 (1961)

Herman Bolsenbroek, Jr., an Infant, by His Guardian ad Litem, Herman Bolsenbroek, Sr., et al., Respondents, v. Tully & Di Napoli, Inc., Appellant, et al., Defendants

Appellate Division of the Supreme Court of the State of New York, First Department.

March 16, 1961.


Attorney(s) appearing for the Case

Thomas P. O'Malley of counsel (George J. Conway, attorney), for appellant.

Bernard Meyerson of counsel (Max J. Merbaum with him on the brief; Harry Wynn, attorney), for respondents.

STEVENS, EAGER and BASTOW, JJ., concur with McNALLY, J. P.; STEUER, J., dissents in part and votes to reverse and order a new trial, in opinion.


McNALLY, J. P.

A burning rag thrown on the face of the infant plaintiff, a lad of nine, caused injuries for which he and his father have recovered verdicts of $8,250.

Prior to February 21, 1956, defendant-appellant had excavated a street ditch for the purpose of installing utility conduits. Defendant-appellant had barricaded the sidewalk side of the ditch; a mound of dirt was raised between the ditch and the street and, prior to the occurrence...

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