
    Ramona E. Aguilar, as Guardian ad Litem of Carmen Lopez, an Infant, Appellant, v. State of New York, Respondent.
    (Claim No. 30200.)
   Appeal from a judgment of the Court of Claims, dismissing the claim upon the merits. The infant claimant was an inmate of the Wassaic State' School. She claimed that an attendant at the school assaulted her and pushed her so that her hand went through a window. On the other hand, the State contended that the claimant had deliberately smashed her hand through the window in a fit of temper. It was for the trier of the facts to determine which one of these two versions to accept. The Court of Claims Judge, upon the whole record, decided that the State’s version was the true one and accordingly dismissed the claim. We cannot say that the decision of the Court of Claims Judge was against the weight of the evidence. It appears that, upon a former trial of the same claim before another Judge, the Trial Judge had decided in favor of the claimant but, upon appeal (279 App. Div. 103), this court reversed the judgment and ordered a new trial upon the ground that the trial court had erred in rejecting the testimony of certain inmates of the institution offered by the State. Upon the new trial, the testimony of one of the witnesses, whose testimony had been excluded upon the first trial, supported the State’s version of the occurrence; the other witness added little that was new. Even if we assume that there was no substantial difference between the evidence upon the second trial and the evidence upon the first, the Judge upon the second trial had both the right and the duty to decide the case on the facts de novo, in accordance with his view of the credibility of the witnesses and the weight of the evidence. He was not bound by the decision of the Judge upon the first trial. Neither was any inference to be drawn from the fact that this court had reversed the former judgment in favor of the claimant solely on questions of law, that the questions of fact were necessarily to be decided in favor of the claimant. Judgment unanimously affirmed, without costs. Present—Foster, P. J., Bergan, Coon, Halpern and Zeller, JJ.  