
    Edna M. McGuirk, as Administratrix of the Estate of Edward McGuirk, Deceased, Plaintiff, v. Ernest Flagg, Defendant.
    Supreme Court, Trial Term, Kings County,
    March 11, 1947.
    
      
      William L. Hughes and Moe Levine for plaintiff.
    
      Robert L. Callahan for defendant.
   Mo Gooey, J.

The twenty-one-month-old son of the plaintiff administratrix went through an iron picket fence on the roof of a multiple dwelling owned by the defendant and in which they resided, and fell nine stories to his death. The pickets through which he walked or crawled were five and three-eighths inches apart. Most of the pickets in the fence were three and one-half inches apart. The jury has returned a verdict in favor of the plaintiff. The facts in the instant ease distinguish it from those relied on by the defendant in support of Ms motions to set aside the verdict and to dismiss the complaint. This accident happened at a place provided for young cMldren to play. The prospectus of the defendant said, “ If a mother wants to watch her children at play in tMs delightful and health-giving enclosure, she will find such shelter at her disposal, or if she has other things to do may leave her cMld with the assurance that no harm can befall him ”, and “ Here the cMldren can play in perfect safety and their parents can either bask in the sun or enjoy the ocean breezes ”. I tMnk the evidence presented a question of fact as to whether the accident could reasonably have been anticipated.

Motions denied. Thirty days ’ stay; sixty days to make a ease.  