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LOGAN v. ESTERLY

34 N.Y.2d 648 (1974)

James B. A. Logan, Sr. et al., Plaintiffs, and James B. A. Logan, Jr. et al., Respondents, v. Frances B. Esterly, as Executrix of Andrew Esterly, Deceased, et al., Appellants, and City of New York, Appellant-Respondent.

Court of Appeals of the State of New York.

Decided March 28, 1974.

Attorney(s) appearing for the Case

Walter G. Evans and Alfred V. Norton, Jr. for Charles R. Esterly and another, appellants.

William F. McNulty, Daniel J. Coughlin and Anthony J. McNulty for Gull Contracting Co., Inc. and another, appellants.

Norman Redlich, Corporation Counsel (Bernard Burstein and Stanley Buchsbaum of counsel), for appellant-respondent.

Seymour Stern for respondents.

Judges GABRIELLI, JONES, WACHTLER and STEVENS concur in memorandum; Judge JASEN dissents and votes to reverse in an opinion in which Chief Judge BREITEL concurs; Judge RABIN taking no part.

MEMORANDUM.

We find no reason to disturb the rulings appealed from insofar as they are in favor of plaintiffs against the defendants. We agree with the Appellate Division that the requests to charge the assumption of risk doctrine were deficient in that they should have included the qualification that the jury preliminarily find as a fact that the infant plaintiffs had knowledge that the defendant driver possessed only a...

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