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STAR HESSE v. JOHN HRUBSA ET AL. (08/30/68)

NEW YORK SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT


August 30, 1968

STAR HESSE, AN INFANT, BY HER GUARDIAN AD LITEM, WILLIAM F. HESSE, ET AL., RESPONDENTS,
v.
JOHN HRUBSA ET AL., DEFENDANTS, AND ANN MILLER, APPELLANT

Appeals (1) from so much of a judgment of the Suffolk County District Court, First District (Frank P. De Luca, J.), entered June 29, 1967, upon a verdict rendered in favor of plaintiffs after trial of this negligence action, as directed recovery in favor of plaintiffs against defendant-appellant Ann Miller, and (2) from orders of said court dated October 16, 1967 and January 23, 1968 (the latter denying a motion for an order vacating said judgment: see 55 Misc. 2d 610). There was evidence that the injured plaintiff, about six weeks before her 13th birthday, was playing "flashlight tag" with other girls after dark and thus ran upon premises occupied by defendant Hrubsa and there fell against a barbed wire fence erected by said Hrubsa, who had leased the premises from the defendant-appellant Ann Miller.

Concur -- Hogan P J., Glickman and Pittoni, JJ.

Author: Per Curiam

 Plaintiff failed to establish any reservation of control on the part of defendant Miller over the site of the accident (Marino v. Landberge, 297 N. Y. 830) and her own freedom from contributory negligence (Alexander v. Cavagnaro, 4 A.D.2d 689, affd. 4 N.Y.2d 989; Midgett v. Mastropoalo, 277 App. Div. 792, app. dsmd. 302 N. Y. 687).

The judgment, so far as appealed from, should be unanimously reversed, without costs, and complaint dismissed as to defendant Ann Miller. Appeal from orders dated October 16, 1967 and January 23, 1968 dismissed as academic.

Judgment reversed, etc.

Disposition

Judgment reversed, etc.

19680830

© 1998 VersusLaw Inc.



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