Opinion
November 8, 1943.
Present — Close, P.J., Carswell, Johnston, Taylor and Lewis, JJ."
The decision of this court handed down November 1, 1943 [ ante, p. 1007], is amended to read as follows: "Milton Maurer and Isidor Maurer, Appellants, v. Board of Education of the City of New York, Respondent. — In an action by an infant plaintiff to recover damages for personal injuries suffered as a result of contact with a student swimmer in a pool supervised by a competent instructor and several students as assistants, and a companion action by the infant's father for medical expenses incurred and loss of services, the complaint was dismissed at the end of plaintiffs' case. Judgment unanimously affirmed, with costs. The defendant adequately fulfilled its duty generally to supervise the pool, under the facts of this case, by providing a competent instructor. ( Peterson v. City of New York, 267 N.Y. 204; Curcio v. City of New York, 275 N.Y. 20; Graff v. Board of Education of City of N.Y., 258 App. Div. 813, affd. 283 N.Y. 574.) Since it is conceded that the instructor was not personally negligent, section 881-a Educ. of the Education Law is not applicable. It appears without dispute that the infant plaintiff is now of age and the caption of the action is amended accordingly.