Torts · MBE-tested

Paul Kielich, an Infant, by John Kielich, His Guardian ad Litem, Respondent, v. William Hengerer Company, Appellant

241 A.D. 796·New York Supreme Court, Appellate Division·1934·NY

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Opinion

Paul Kielich, an Infant, by John Kielich, His Guardian ad Litem, Respondent, v. William Hengerer Company, Appellant. [MAJORITY] Judgment and order affirmed, with costs. All concur, except Lewis, J., who dissents and votes for reversal on the law and for a new trial on the ground that the infant plaintiff, who was eoncededly non sui juris, was guilty of such conduct as would have constituted negligence as a matter of law had he been an adult and that he failed to sustain the requisite burden of proof that his custodian was free from contributory negligence under the ruling in Kupchinsky v. Vacuum Oil Co. (263 N. Y. 128).