Butterfield v. State — 238 N.Y. 634

Majority

p. 634

Judson L. Butterfield, as Administrator of the Estate of Arthur O. Butterfield, Deceased, Appellant, v. The State of New York, Respondent.

Headnote

State —■ negligence —■ military service — State not liable for drowning of soldier while he was guarding unlighted loch of Barge canal.

Butterfield v. State of New York, 205 App. Div. 168 , affirmed.

(Argued June 6, 1924;

decided July 5, 1924.)

Appeal from a judgment, entered May 22, 1923, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment of the Court of Claims in favor of plaintiff and directing a dismissal of said claim. Claimant’s intestate, a private in the New York State Guard, was drowned while in the performance of his military duties, guarding lock No. 7 of the Barge canal at Fort Edward. It was the theory of the claimant that he accidentally slipped or fell into the lock. No complaint was made that the lock

p. 635

was faulty in its construction. The sole complaint was that there was negligence in not lighting the locks so that Butterfield might patrol in safety; that the darkness thereby occasioned resulted in his precipitation into the lock.

Benjamin P. Wheat for appellant.

Carl Sherman, Attorney-General (W. J. Wetherbee of counsel), for respondent.

Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.