
    William B. Herguth, Individually, and as Guardian ad Litem for William B. Herguth, Jr., an Infant, Appellant, v. State of New York, Respondent.
    (Claim No. 36531.)
   Per. Gwriam.

Appeal from a judgment of the Court of Claims which dismissed the claim of an infant and the derivative cause of action of his parent predicated on the alleged negligence of the State in the maintenance and operation of Tallman Mountain State Park and in the supervision of its use by the public, whereby the infant claimant was injured when struck in the eye by a pellet discharged from an air gun by one of his companions. The park, of some 112 acres, was open on the Winter day on which the accident occurred. The claimant, then nearly 12 years old, accompanied two other boys to the park and met other boys there, two of them sons of the park superintendent. The boys obtained air guns belonging to the superintendent’s sons from the living quarters of the superintendent and his family in one of the park buildings and shortly engaged in what they termed a war, shooting directly at each other for a period estimated at 15 minutes or more. Claimant engaged actively in the fracas, shooting at the others even after being struck in the body a number of times before he was struck in the eye. The superintendent said that he saw the boys in the park on the day of the accident but he testified, as did the patrolman who checked the park twice on the day of the accident, that neither on that day nor previously did he see them with air guns. The general supervision of the park was adequate for the season of the year, as the trial court found. The extraordinary danger arising out of the deliberate and reckless assaultive acts by boys of 12 years and over was not reasonably to be foreseen. The proof warranted, also, the finding of the infant claimant’s contributory negligence. Judgment affirmed, without costs.

Gibson, P. J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.  