Opinion
March, 1926.
Judgment and order reversed on the law and new trial granted, with costs to appellant to abide the event. The exception at folio 510 appropriately advised the court of the omission to charge the jury that if the infant, though non sui juris, had not done or omitted to do an act which would constitute negligence in a person of years of discretion, an injury due to the negligence of defendant could not be defended upon the negligence of the guardian of the child. ( McGarry v. Loomis, 63 N.Y. 104; Huerzeler v. C.C.T.R.R. Co., 139 id. 490, 494.) Rich, Manning, Young and Lazansky, JJ., concur; Kelly, P.J., concurs in result.