
    Alan Brooks, an Infant, by Arthur Brooks, His Guardian ad Litem, et al., Respondents, v. Board of Education of the City of New York, Appellant.
    Argued January 16, 1963;
    decided February 21, 1963.
    
      
      Leo A. Larkin, Corporation Counsel {John A. Murray and Seymour B. Quel of counsel), for appellant.
    
      Bernard Meyerson for respondents.
   Judgment affirmed, with costs.

Concur: Chief Judge Desmond and Judges Dye, Van Voorhis, Burke and Foster. Judge Scileppi dissents in the following memorandum, in which Judge Fuld concurs.

Scileppi, J. (dissenting).

I cannot agree with the majority that defendant Board of Education breached a duty to provide an adequate degree of general supervision over student activities.

The infant plaintiff was injured in a school gymnasium while engaging in an exercise in the basic skills of the game of soccer, under the supervision of a physical education teacher. Groups of boys were placed on both sides of the gymnasium. Each boy on a side was given a number, and corresponding numbers were given to boys on the other side. The numbers were assigned at random. When a number was called the two boys to whom that number was assigned would run to a ball in the center of the floor and attempt to kick it first. The boy whose number corresponded to plaintiff’s was taller and heavier than plaintiff.

The Board of Education may be found negligent in the case of injury to a piipil if a teacher fails to properly and adequately supervise athletic activities or to exercise reasonable care to prevent injury, or if he assigns pupils to exercises which are beyond their abilities. In this case the object of the exercise permitted by the teacher was to develop a skill in approaching and kicking a soccer ball under simulated game conditions and not to block or knock down the other person. Consequently, it is my view that no basis exists for a finding that the exercise was dangerous or that the alleged mismatching of the two boys constituted negligence.

I would reverse the judgment.

Judgment affirmed.  