Opinion
May 12, 1966
Appeal from the Erie Special Term.
Present — Williams, P.J., Bastow, Henry, Del Vecchio and Marsh, JJ.
Order unanimously reversed, without costs of these appeals to any party, and complaints dismissed, without costs. Memorandum: There were presented no issues of material fact. The infant plaintiff, while upon the railroad right-of-way and attempting to board the Chesapeake and Ohio train, was a trespasser. There was no duty owed to him by either defendant that was violated. ( Lo Casto v. Long Is. R.R. Co., 6 N.Y.2d 470; Scholl v. New York Cent. R.R. Co., 3 N.Y.2d 989; Van Houten v. New York, N.H. H.R.R. Co., 286 App. Div. 875, affd. 2 N.Y.2d 739; Van Houten v. Long Is. R.R. Co., 279 App. Div. 1099; Ralff v. Long Is. R.R. Co., 266 App. Div. 794, affd. 292 N.Y. 656; Gleason v. Central New England Ry. Co., 261 N.Y. 333; Penal Law, § 1990, subd. 4; Railroad Law, § 83.)