Turel v. Milberg — 10 Misc. 2d 141

Majority

p. 141

Solomon J. Turel, Respondent, v. Lester Milberg, Appellant.

Supreme Court, Appellate Term, First Department,

October 31, 1957.

William S. O’Connor, Archie B. Morrison and Patrick D. Warren for appellant.

Bernard A. Green for respondent.

Plaintiff was playing golf at the Elmwood Country Club in a foursome with defendant and two others and was struck by a golf ball hit by defendant. Defendant’s liability is predicated on his failure to shout ‘" fore ” before hitting the golf ball. Plaintiff assumed the risk inherent in playing golf. Well

p. 142

aware of this he testified ‘ ‘ no one can tell with certainty when he hits a hall where it is going ’ Since plaintiff himself saw defendant “ about to swing” and actually saw him take the swing, defendant’s shouting “ fore ” could have made no difference.

The judgment should be reversed, with costs, and complaint dismissed, with costs.

Hofstadter, Aurelio and Tilzer, JJ., concur.

Judgment reversed, etc.