Simpson v. Harlem River Houses Children's Center , 28 Misc. 2d 696 ( 1960 )

Per Curiam.

The sole testimony as to the happening of the accident was by the infant plaintiff and was insufficient to establish any breach of supervisory duty on the part of her teacher or failure on his part to foresee any danger or that the infant would do what she did voluntarily, without request by or knowledge of the teacher. All movements of pupils need not be under constant scrutiny (Conway v. Board of Educ., 11 Misc 2d 162). The accident did not result from a lack of proper supervision or of negligence on the part of the defendants but by reason of the infant’s voluntary act. (Ohman v. Board of Educ., 300 N. Y. 306 ; Conway v. Board of Educ., supra ; Favale v. Roosevelt Public School Dist., 193 N. Y. S. 202 ; Bertola v. Board of Educ., 1 A D 2d 973.)

The judgment should be reversed, with $30 costs, and complaint dismissed, with costs.

Concur — Hofstadter, J. P., Aurelio and Tilzer, JJ.

Judgment reversed, etc.