Domino v. Mercurio — 13 N.Y.2d 922

Majority

p. 922

John Domino, Individually and as Guardian ad Litem of Joseph Domino, an Infant, Respondent, v. Philip S. Mercurio et al., Appellants.

Argued October 1, 1963;

decided October 10, 1963.

p. 923

Elmer S. Stengel, Corporation Counsel (John P. Egan of counsel), for appellants.

Philip H. Magner, Jr., for respondent.

Judgment affirmed, with costs. The existence of issues of fact with respect to negligence was conceded by the failure of defendants to move to dismiss at the conclusion of the case. The Appellate Division, in the exercise of its power to reverse in the interests of justice, examined the issue of whether defendant Board of Education was liable in any event. This court, however, cannot reach that issue since no exception was taken to the trial court’s submission of that issue to the jury.

Concur: Chief Judge Desmond and Judges Dye, Fold, Van Voorhis, Burke, Foster and Scileppi.