Opinion
Submitted October 12, 1979
Decided November 13, 1979
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, F. WARREN TRAVERS, J.
Roger J. Cusick for appellants.
James M. Woolsey, Jr., for respondents.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, for the reasons stated in the dissenting memorandum by Mr. Justice PAUL T. KANE.
We would note that at the time of this trial, proof of freedom from contributory negligence was a necessary element of the infant plaintiff's case. Even if there were adequate evidence of the plaintiff's amnesia, permitting a lower degree of proof of this element (Schechter v Klanfer, 28 N.Y.2d 228), no request was made for this charge, nor was any objection made to the charge that the plaintiff had the standard burden. The unexcepted to charge became the law of the case (Olsen v Chase Manhattan Bank, 9 N.Y.2d 829).
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order reversed, with costs, and the complaint dismissed in a memorandum.