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HETZEL v. BUFFALO CEMETERY ASSN.

16 A.D.2d 581 (1962)

Kenneth J. Hetzel, an Infant, by Robert F. Hetzel, His Guardian ad Litem, et al., Appellants, v. Buffalo Cemetery Association, Respondent

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

July 2, 1962.

Attorney(s) appearing for the Case

Joslin & Joslin (Norman E. Joslin of counsel), for appellants.

Gibbons, Pottle, O'Shea & Adamson (F. Lambert Haley of counsel), for respondent.

BASTOW and HALPERN, JJ., concur; WILLIAMS, P. J. and HENRY, J., concur in result on the ground that there were errors in the Judge's charge as set forth in the opinion of GOLDMAN, J., and on the ground that the verdict is against the weight of the evidence.

GOLDMAN, J.

While accompanying his family on a visit to their plot in defendant's cemetery, the infant plaintiff, just under four years of age, suffered a broken leg from the falling of a statue from a monument located about 30 feet from the family grave. The jury returned a verdict of no cause of action. The only issue is the adequacy and correctness of the charge.

The court charged that "if you find...

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