Opinion
January 7, 1942.
Present — Crosby, P.J., Cunningham, Taylor, Harris and McCurn, JJ.
Judgment reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: Upon our examination of the record, we conclude that the finding of negligence is against the weight of evidence. Aside from the testimony of plaintiff's witness that, in his opinion, more than the one playground attendant assigned to supervise this playground was required for adequate supervision thereof, it is doubtful whether plaintiff adduced sufficient evidence to make out a prima facie case ( Fritz v. City of Buffalo, 277 N.Y. 710; Curcio v. City of New York, 275 id. 20; Peterson v. City of New York, 267 id. 204), and the opinion evidence was incompetent. ( Lowery v. Syracuse University, 258 App. Div. 844. ) Furthermore, the court's charge to the jury failed adequately to define the issues. Although no objections were made to either the incompetent evidence or to the charge as made and no requests to charge were made by defendant's counsel, we think that, under the circumstances, the interests of justice will be best served by granting a new trial. All concur, Cunningham and Harris, JJ., in result only. (The judgment is for plaintiff in a negligence action.)