Henry v. Board of Education , 245 N.Y.S.2d 21 ( 1963 )

In a negligence action to recover damages for personal injury sustained by the infant plaintiff, a student at a junior high school operated by the defendant, as the result of an assault in the school corridor upon him by another pupil in the immediate presence of a teacher; and by his mother, to recover damages for loss of services and medical expenses, the plaintiffs appeal from a judgment of the Supreme Court, Queens County, entered June 15, 1962 after a jury trial, in favor of the defendant, dismissing the complaint at the close of plaintiffs’ case for failure of proof. Judgment reversed on the law and the facts, and a new trial granted, with costs to abide the event. Examination of the record discloses that by reason of the Trial Judge’s undue participation in the trial, the plaintiffs were impeded in adducing the proof needed to establish a prima facie ease. Under all the circumstances, the plaintiffs did not have a fair trial, and a new trial is required, in the interests of justice (cf. Levy v. Reilly, 18 A D 2d 632; Kamen Soap Prods. Co. v. Prusansky & Prusansky, 11 A D 2d 676; Whitehead v. Mutual Ins. Co., 264 App. Div. 647, 648-649; Rohatiner v. Travelers Ins. Co., 264 App. Div. 726; Brown v. Looser & Co., 244 App. Div. 819). Ughetta, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur.