Quarcini v. Blackwell — 10 N.Y.2d 843

Majority

p. 843

Joseph Quarcini, Individually and as Guardian ad Litem of Anthony Quarcini, an Infant, Respondent, v. Clara Blackwell, Appellant.

Argued October 5, 1961;

decided October 19, 1961.

p. 844

Harry J. Kelly for appellant.

John R. Minicucci for respondent.

Judgment affirmed, with costs, in the following memorandum : The instruction to the jury that a driver of an automobile must exercise “ extreme care or caution ” when driving on a street where children are playing was concededly erroneous. We affirm, however, in view of the other instructions to the jury and in view of the fact that no adequate exception was taken. The instruction in question was excepted to solely upon the ground, not borne out by the record, that there was no testimony in the case that there were any children playing in the street. No opinion.

Concur: Chief Judge Desmond and Judges Dye, Fuld, Froessel, Burke and Foster. Judge Van Voorhis concurs solely upon the ground that no adequate exception was taken to the instruction to the jury.