MILLER, J.:
The defendants are copartners, and the negligence charged was the maintenance by the defendants of an open unguarded cellarway on their premises near the sidewalk. The plaintiff, a little boy eight years of age, was sitting on the step by the side of the cellarway when one of the defendants kicked him and caused him to fall into the cellarway, sustaining injuries for which he has recovered. The plaintiff's theory is that the open cellarway was one of the proximate causes of the injuries; that that and the assault were concurrent causes. We do not think so. The plaintiff's cause of action, if any, is for assault against the person who committed the assault.
The judgment and order should be reversed and a new trial ordered, costs to abide the event.
JENKS, GAYNOR and RICH, JJ., concurred; HOOKER, J., dissented.
Judgment and order of the County Court of Kings county reversed and new trial ordered, costs to abide the event.