The defendant appeals from a judgment following the verdict of a jury for damages arising from the death through drowning of an infant, fourteen years of age, who was bathing in a pool constructed and maintained by the defendant. Negligence was predicated upon the failure of a life guard to act promptly by diving to recover the drowning person. The verdict *850was against the weight of the evidence upon that issue, and upon the issue of proximate cause if in fact it is to be found that the life guard delayed in entering the water. Judgment reversed on the law and facts, with costs to the appellant to abide the event, and a"new trial granted. Hill, P. J., and Foster, J., concur; Crapser, J., concurs, in the interests of justice; Bliss and Heffeman, JJ., dissent. [174 Misc. 774.]