Opinion
May 17, 1955.
Submission of a controversy pursuant to sections 546-548 of the Civil Practice Act.
The agreed statement of facts gives rise to conflicting inferences with respect to some aspects of the case, thus making it inadvisable to grant judgment to either party on the statement as submitted. The parties agree that "The vaporizer required no supervision during operation". Different inferences may be drawn from that statement; i.e., that it required no supervision with respect to the mechanics of its operation or that it required no supervision during its operation with respect to its proximity to the patient. We may not draw either inference. Likewise there is no indication as to the nature of the duties the nurse was to perform when she left the infant plaintiff. Was her leaving an administrative or medical act? That depends on facts which are not set forth. Consequently, this court will not grant judgment to either party on the instant submission of the controversy. ( Graham v. East 88th St. Corp., 282 App. Div. 754.) The proceeding is dismissed but without prejudice.
Peck, P.J., Callahan, Breitel, Bastow and Rabin, JJ., concur.
Proceeding unanimously dismissed, without prejudice.