
    William Joseph Miller, an Infant, by William H. Miller, His Guardian ad Litem, Respondent, v. John Bahmmuller and Charles Bahmmuller, Composing the Firm of Bahmmuller Brothers, Appellants.
    Second Department,
    February 28, 1908.
    Assault -r- injury to plaintiff by kicking him into open cellarway — ■ action not founded on negligence.
    A plaintiff, who, while sitting on the step by the side of an open cellarwhy maintained by copartners, was kicked by one of the partners so that he fell into the cellarway and was injured, must base his cause of action on an assault by the person who committed the same. He cannot base his' action upon negligence of the defendants in maintaining an open, unguarded cellarway. -
    Hooker, J., dissented.
    Appeal by-the defendants, John Bahmmuller and another, from a judgment of the County Court of Kings county in favor of the plaintiff, entered .in the office of the clerk of the county of Kings on the 26th day of February; 1907, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the ■ 26th day.of February, 1907, denying the defendants’ motion for a new trial made upon tlié minutes.
    
      Walter H. Liebmann, for the appellants.
    
      Robert Stewart [Ralph G. Barclay with him on the brief],- for •the. respondent. ...
   Miller, J.:

The defendants are copartners, and the negligence charged was the maintenance by the defendants of an open unguarded cellar-way 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 cellar way, 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 sol ' 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 hew trial ordered, costs to abide the event.

Jehks, 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.  