
    Catherine Donohue, as Administratrix, etc., of John Donohue, Deceased, Respondent, v. The City of New York and Michael McCormack, Defendants, and Jamaica Water Supply Company, Appellant.
   Action by an administratrix to recover damages sustained by the death of her intestate, alleged to have resulted from the negligence of the defendant-appellant. Plaintiff’s intestate, with other children, was playing in a trench excavated by the appellant in a public highway, when an automobile was driven over a pile of dirt and into and upon the intestate, killing him. Judgment in favor of the plaintiff, entered upon the verdict of a jury, affirmed, with costs. No opinion. Lazansky, P. J., Young, Hagarty and Adel, JJ., concur; Taylor, J., dissents and votes to reverse the judgment and to dismiss the complaint, with the following memorandum: Assuming that the defendant-appellant was negligent as charged, there is no evidence from which it may be inferred that such negligence was either the direct or proximate cause of the accident and the death of the decedent. He, with other children, was playing in the trench excavated by the appellant in a public highway when an automobile was driven over a pile of dirt at the side of the trench, into the trench and upon the intestate, causing his death. There is no evidence as to who was driving the automobile or that the driver did not see the pile of dirt and the trench. Therefore, the plaintiff established no causal connection between the appellant’s alleged breach of duty and the accident, and appellant is not liable. (Boronkay v. Robinson & Carpenter, 247 N. Y. 365, 368; Martin v. Herzog, 228 id. 164, 170.)  