DOMINO v. MERCURIO


17 A.D.2d 342 (1962)

John Domino, Individually and as Guardian ad Litem of Joseph Domino, an Infant, Respondent, v. Philip S. Mercurio et al., Appellants

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

December 6, 1962.


Attorney(s) appearing for the Case

John P. Egan and Elmer S. Stengel for appellants.

Montesano, Garvey & Magner (Philip H. Magner and Charles D. Brown of counsel), for respondent.

BASTOW and McCLUSKY, JJ., concur with HALPERN, J.; WILLIAMS, P. J., and HENRY, J., dissent and vote to reverse and grant a new trial in opinion.


HALPERN, J.

This action was brought to recover for injuries suffered by the infant plaintiff when he fell over a bench while playing in a softball game in a school playground maintained by the Board of Education of the City of Buffalo, on August 23, 1956.

The playground was screened in by a fence. The third base line was 27 feet from the nearest fence. There were three benches in the baseball area; one...

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