dissent">McNally, J. (dissenting).

In this action grounded in negligence, the infant defendant, nine years of age at the time of the occurrence, and the said infant’s father and grandfather were absolved by the verdict of the jury which brought in a verdict against the infant’s grandmother. The case against the infant’s stepmother was withdrawn. Plaintiff necessarily proceeded against the infant defendant on the theory that he was sui juris. The grandmother’s liability was secondary. If the infant defendant was sui juris and was not guilty of negligence, then the verdict against the grandmother is inconsistent. (Pangburn v. Buick Motor Co., 211 N. Y. 228; Israel v. Wood Dolson Co., 1 N Y 2d 116.)

The sole basis upon which the verdict against the grandmother may stand is that there is implicit in the jury’s verdict a finding that the infant defendant was non sui juris. The court charged in that regard as follows: “ A child of tender years is not required to conform to the standard of behavior which it is reasonable to expect of an adult, but his conduct is to be judged by the standard of behavior to be expected from a child of like age, intelligence and experience.”

The issue would have been clearly before the jury if the court had charged that the jury' was entitled to decide under the facts and circumstances of this case whether or not the infant defendant had the capacity to apprehend the danger of his conduct and to exercise care and prudence. The fore*186going charge, standing alone, might have enabled the jury to pass on the issue. However, in the light of the subsequent proceedings, it would appear that the issue was not submitted to the jury. The infant defendant’s attorney specifically requested the court to charge as follows:

“ If the Court pleases, I would like the Court to charge that a child under 12 years of age is presumed to be non-suit juris, that is, incapable of exercising care for his safety and that of others.

“ The Court: I refuse, except as charged.

“ A Juror: Refused?

‘ ‘ The Court: Refused, except as charged. ’ ’

The refusal to charge as requested served to limit the issue of liability on the part of the infant defendant as one sui juris. The response of the juror confirms this view.

Furthermore, on this record the grandmother was not chargeable with foreseeing the conduct of the infant defendant resulting in the injuries sustained by the infant plaintiff. There was no proof that the infant defendant had shown dangerous or vicious propensities. In fact, the infant defendant was endeavoring to be kind and considerate and entertain the infant plaintiff when this unfortunate accident occurred. Under the circumstances, the jury may not impose upon the grandmother liability for the consequences of an act with which the jury did not charge the perpetrator.

The judgment should be reversed and a new trial granted. (Pangburn v. Buick Motor Co., supra, pp. 236-237.)

Fraxk, Valente and Bergan, JJ., concur with Boteen, J. P. ; McNally, J., dissents and votes to reverse and grant a new trial in opinion.

Judgment, affirmed, with costs.

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