Opinion
March 5, 1952.
Present — Taylor, P.J., McCurn, Vaughan, Kimball and Wheeler, JJ.
Judgment and order reversed on the law and facts, and complaint dismissed, without costs of this appeal to either party. Memorandum: We think under the evidence in this case that it was error to deny the defendant's motion for a nonsuit. In our view, no negligence is established by reason of the defendant's failure to establish rules for the playground (see Hoose v. Drumm, 281 N.Y. 54; Peterson v. City of New York, 267 N.Y. 204). Moreover, the evidence here does not establish that failure to adopt rules is the proximate cause of the accident. We conclude, also, that the record contains no evidence upon which a jury might properly find that the playground was maintained in a negligent or dangerous condition. All concur. (Appeal from a judgment for plaintiff in a negligence action. One order denies defendant's motion for a new trial; one order denies a motion to dismiss.)