Heddy v. Dairymen's League Co-Operative Ass'n

242 A.D. 687

Opinion

Order modified by eliminating item 1, and by providing, in so far as items 2 and 3 are concerned, that if defendants claim that either the infant or the guardian was negligent, to state the particulars of such negligence, or if they are not in possession of such particulars, so to state and likewise to state that they intend to rely upon the testimony of plaintiff’s witnesses on the issue of contributory negligence. As so modified the order is affirmed, with ten dollars costs and disbursements to appellants: .the particulars to be served within five days from the entry of the order herein. Defendants, upon whom rests the burden of proof as to contributory negligence, should not be required to assert before trial whether the infant decedent was sui juris or non sui juris. The modification as to items 2 and 3 is in accordance with Dunson v. Kirtland (235 App. Div. 854) and Wright v. Di Milia (236 id. 807). Lazansky, P. J., Young, Hagarty, Seudder and Davis, JJ., concur.