Opinion
July 8, 1970
Appeal from an order of the Supreme Court, entered October 21, 1969 in Albany County, which set aside a verdict in favor of plaintiffs rendered at a Trial Term, as contrary to the weight of the evidence, and dismissed the complaint. This action, predicated solely on a theory of negligence, arises out of injuries sustained during physical combat between two 14-year-old students at the Colonie High School on January 6, 1967. Both were in the same social studies group and, after a series of classroom incidents involving the removal of his wallet that day and the day previous, Gary Jones, the infant plaintiff, told Earl Kent, the defendant, and another nearby student "stop it. I am not afraid of you guys * * * leave me alone". The other pupil then said, "why don't you meet him in the boys room then" and Gary replied he would if he had to. The period over, Gary proceeded to the boys room, noticed Earl, dropped his books, walked "quite close" to defendant and inquired why he had been taking his wallet. Pushing escalated into fisticuffs and the infant plaintiff's eye was injured. Negligence is distinguished from assault and battery by the absence of that intent which is a necessary ingredient of the latter (cf. Masters v. Becker, 22 A.D.2d 118; McGovern v. Weis, 265 App. Div. 367). Even if we were to suppose that defendant's classroom conduct of harassment was unreasonable and negligent, as urged, the infant plaintiff is precluded, as a matter of law, from recovering because he assumed the risk of the injury he sustained. Clearly, plaintiff voluntarily and knowingly accepted the challenge to meet defendant in the boys room after class. Instead of exercising the good judgment that the passage of time between the last wallet incident and the conclusion of class afforded, plaintiff journeyed to the scene, on the next floor, where trouble reasonably was to be expected. Accordingly, he consciously assumed the risk of the harm he ultimately suffered during the fight and cannot now be heard to complain ( Ruggerio v. Board of Educ. of City of Jamestown, 31 A.D.2d 884, affd. 26 N.Y.2d 849; McEvoy v. City of New York, 266 App. Div. 445, 447-448, affd. 292 N.Y. 654; Conroy v. Saratoga Springs Auth., 259 App. Div. 365, 368, affd. 284 N.Y. 723). Where a verdict is set aside as being contrary to the weight of the evidence, a new trial should be ordered (CPLR 4404, subd. [a]); 4 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 4404.09) but, under its statutory power of review (CPLR 5522), this court, upon concluding that the infant plaintiff assumed the risk of injury as a matter of law, can render a final determination dismissing the complaint ( Strasbourger v. Leerburger, 233 N.Y. 55, 61; Millens Sons v. Vladich, 28 A.D.2d 1045, 1046, affd. 23 N.Y.2d 998). Order affirmed, without costs. Herlihy, P.J., Aulisi, Staley, Jr., Cooke, and Sweeney, JJ., concur in memorandum by Cooke, J.