
    Patricia J. Luther, an Infant, by Her Guardian ad Litem, Robert J. Luther, et al., Appellants, v. Joseph Novack et al., Respondents.
   In a negligence action by the infant plaintiff to recover damages for personal injury, and by her father to recover damages for medical expenses and loss of services, the plaintiffs appeal from a judgment of the Supreme Court, Rockland County, entered February 27, 1963 after trial upon a jury’s verdict in the defendants’ favor, dismissing the complaint on the merits. Judgment affirmed, without costs. No opinion. Christ, Brennan, Rabin and Hopkins, JJ., concur; Kleinfeld, Acting P. J., dissents and votes to reverse the judgment, and for a new trial, with the following memorandum: The infant plaintiff was 9% years of age when the accident occurred. The jury was charged that even “ immature children,” in the role of plaintiffs, must always prove themselves free from negligence.” In my opinion, this charge was erroneous and prejudicial. It is a jury question whether a 9% year old child is sui juris. The jury specifically stated, in their verdict for the defendants, that their determination was based upon the infant’s contributory negligence. Under the circumstances, the judgment should be reversed and a new trial granted in the interests of justice, even though there was no exception to the above-quoted portion of the charge.  