
    Danny P. Valk, an Infant, by Daniel P. Valk. His Father, et al., Respondents, v. Frederick Estro, an Infant, by Frank Estro, His Father, Appellant.
   In a negligence action to recover damages for personal injuries sustained by the infant plaintiff, etc., defendant appeals from an interlocutory judgment of the Supreme Court, Queens County, dated July 29, 1974, in favor of plaintiffs- on the issue of liability, after a nonjury trial upon that issue. Judgment reversed, on the law, with costs, and complaint dismissed. The infant plaintiff (Danny) and the infant defendant (Frederick) were spectators at a handball game played upon a rectangular fenced-in handball court in a public park. Danny was seated with two friends in the southeastern comer of the handball court awaiting his next ” when the ball (a pink rubber Spaulding) went astray and came to rest beyond the court of play, in an area formed by the southerly fence and the southern end of the handball wall. Frederick retrieved the ball and threw it towards the court of play, a distance estimated at approximately 42 feet plus ”. The ball landed and bounced approximately three feet in front of Danny striking him in the eye and allegedly causing him the injuries complained of. Under the facts we are of the opinion that there is insufficient evidence upon which to predicate a cause of action sounding in negligence. Frederick’s act created no unreasonable risk of injury to Danny which the “eye of vigilance” could have detected at the time (cf. Nussbaum V. Lacopo, 27 N Y 2d 311). Hopkins, Acting P. J., Brennan and Benjamin, JJ., concur; Martuscello and Shapiro, JJ., dissent and vote to affirm on the opinion at Trial Term.  