Opinion
November 27, 1950.
In this action to recover damages for personal injuries, sustained by a domestic during the course of her employment by the defendant, as the result of being struck with a baseball bat by the defendant's son, who is alleged to be of the age of eight years, the complaint alleges that the child's tendency to commit assaults was known to the defendant; that the defendant did not disclose the fact of such tendency to the plaintiff; that the defendant permitted the child to possess the bat "which in his hands, was a dangerous instrument"; and that the defendant "omitted to restrain the freedom of said child and also neglected to take proper measures to prevent the plaintiff from being injured." Order denying defendant's motion to dismiss the complaint on the ground that upon its face it does not state facts sufficient to constitute a cause of action, affirmed, with $10 costs and disbursements, with leave to defendant to answer within ten days from the entry of the order hereon. (See Steinberg v. Cauchois, 249 App. Div. 518, and Agnesini v. Olsen, 277 App. Div. 1006.) Carswell, Acting P.J., Johnston, Adel and Wenzel, JJ., concur; MacCrate, J., not voting. [ 197 Misc. 791.]