
    ROSENSTEIN v. NEW YORK, N. H. & H. R. CO.
    (Supreme Court, Appellate Term.
    December 9, 1908.)
    Appeal from Municipal Court, Borough of Manhattan, Second District. Personal injury action by Abraham Rosenstein against the New York, New Haven & Hartford Railroad Company. From orders and a judgment for plaintiff, defendant appeals. Judgment affirmed. Appeal from orders dismissed. See, also, 111 N. Y. Supp. 718. William Greenough, for appellant. J. W. Block, for respondent.
   PER CURIAM.

Judgment affirmed, with costs. Appeal from orders dismissed.

MacLEAN, J.

(dissenting). I-n this action to recover damages for personal injuries occasioned by the fall of a window in a car of the defendant, a disinterested witness, one Hurley, testified for the defendant that the mother of the plaintiff, then a child 2y2 years of age, “raised the window a little ways, and we had "not gone very far before the window came down on the child’s arm.” That the mother raised the window a little ways before it fell upon the plaintiff was not contradicted, nor does it otherwise appear who had raised the window before the accident. Assuming that that window was defective when raised to the point where a catch was, or was customary to be, and that the jury by their verdict for the plaintiff have so found, unless it appear that the mother of the plaintiff, and his custodian, raised the window to a point where the catch, if any, was to operate, it may hardly be said that a defective catch was the proximate cause of the fall of the window, or that the custodian of this youthful plaintiff, presumably non sui juri's, did herself exercise reasonable care under the circumstances. The carrier was not an insurer, though obligated, so far as its running gear is concerned, to a high degree of care. The judgment should therefore be reversed, and the cause tried again.  