Action to recover damages for personal injuries sustained by plaintiff, an infant, seven and one-half years of age, when using a slide, while engaged in playing the game of tag. Judgment reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. No evidence of any violation of duty on the part of the appellant that had any causal relation to the accident was shown. To cast appellant in damages under the facts of this case would be imposing upon the city a responsibility greater than reasonable caution requires. ( Thompson v. Board of Education, 280 N.Y. 92; Curcio v. City of New York, 275 N.Y. 20; Peterson v. City of New York, 267 N.Y. 204; Miller v. Board of Education, Union Free School Dist. No. 1, Town of Oyster Bay, 249 App. Div. 738.)
Lazansky, P.J., Carswell, Johnston and Adel, JJ., concur; Close, J., dissents and votes to affirm the judgment, with the following memorandum:
There was an issue for the jury as to appellant's negligence by reason of the fact that the person in charge of the playground permitted the slide to be subjected to a use for which it was never intended.