Opinion
Argued October 5, 1961
Decided October 19, 1961
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, WILLIAM S. LAWLESS, J.
Harry J. Kelly for appellant.
John R. Minicucci for respondent.
Judgment affirmed, with costs, in the following memorandum: The instruction to the jury that a driver of an automobile must exercise "extreme care or caution" when driving on a street where children are playing was concededly erroneous. We affirm, however, in view of the other instructions to the jury and in view of the fact that no adequate exception was taken. The instruction in question was excepted to solely upon the ground, not borne out by the record, that there was no testimony in the case that there were any children playing in the street. No opinion.
Concur: Chief Judge DESMOND and Judges DYE, FULD, FROESSEL, BURKE and FOSTER. Judge VAN VOORHIS concurs solely upon the ground that no adequate exception was taken to the instruction to the jury.