SEDA v. BOARD OF EDUC. OF THE CITY OF NEW YORK

Judgment appealed from is perforce based on a finding that the infant plaintiff fell while jumping for the horizontal bar. The evidence in this case however impels us to find that he fell not while jumping for the bar but while he was in the act of swinging on it. In these circumstances no liability may be imposed upon the defendant ( Miller v. Board of Educ., 249 App. Div. 738). Judgment unanimously reversed, without costs, and judgment is directed to be entered in favor of the defendant dismissing the complaint herein. Settle order on notice.

Concur — Botein, J.P., Rabin, Cox, Frank and Valente, JJ.