Opinion
March 15, 1948.
Action to recover damages for personal injuries sustained by a boy, thirteen years of age, who, while trespassing upon defendant's property, slipped and fell into a smouldering fire where defendant had burned refuse from its plant and over which it had pushed sand and gravel, and by his mother for expenses, etc. Judgment for plaintiffs reversed upon the law and facts, with costs, and the complaint dismissed on the law, with costs. The court charged, without exception, that the only duty on the part of defendant to the infant plaintiff was to refrain from intentionally injuring him. There is no proof whatever that defendant intended injury to the plaintiff; but, on the contrary, the record established that what defendant did was solely in the furtherance of its business and upon its own property, 150 feet from any public highway or thoroughfare. ( Leonard v. Home Owners' Loan Corp., 297 N.Y. 103; Carbone v. Mackchil Realty Corp., 296 N.Y. 154; Meyer v. Pleshkopf, 251 App. Div. 166, affd. 277 N.Y. 576; Zaia v. Lalex Realty Corp., 261 App. Div. 843, affd. 287 N.Y. 689.) Lewis, P.J., Carswell, Adel, Sneed and Wenzel, JJ., concur.