Opinion
October 24, 1963
Appeal from the Onondaga Trial Term.
Present — Williams, P.J., Bastow, Goldman and Noonan, JJ.
Judgment unanimously reversed on the law and a new trial granted, with costs to the appellants to abide the event. Memorandum: Plaintiffs seek to recover damages from the infant defendant for his alleged negligent acts in igniting material in a barn that caused its destruction by fire. Upon the trial a supervisor of education of a central school produced certain school records of the infant pursuant to subpoena duces tecum served by plaintiffs. The trial court declined to examine the records, in substance refused to permit plaintiffs' counsel to examine them and precluded all use thereof. Various grounds were assigned for the rulings. First, the trial court announced that they were privileged under the Education Law, again that the parents had not consented to their use and finally that they undoubtedly referred "to medical examinations conducted by the school, which are privileged under the Civil Practice Act." The early foreclosure of all exploration of the records prevents us from intelligently ruling on their admissibility. No provision of the Education Law is cited by respondent that makes the records in and of themselves privileged. Instead of the abrupt rulings the trial court should have examined the records and passed upon their use and admissibility in the light of applicable rules of evidence. Finally, we conclude that it was error to dismiss the complaint. The proof submitted was sufficient to require a denial of the motion made at the close of plaintiffs' proof.