We dissent and vote to reverse the judgment and grant a new trial. While we agree with the general principle of liability of a Board of Education for the negligence of its teachers stated in the prevailing opinion, we fail to find any evidence in this case that the defendant teachers were negligent. Plaintiffs allege that they allowed a bench to be in a location so near the playing field that it constituted a hazard to the players. There was evidence that the infant plaintiff in attempting to catch a foul ball which had been hit into the air near the third base line ran into a spectator, hit the bench and fell, sustaining injuries. There was also evidence that the bench was then halfway between the fence and the third base line, whereas it had never been in that position before but had been back against the fence for all previous games. There is no evidence as to how, when, or by whom the bench had been moved from its usual location against the fence to the place where the accident occurred. As stated in the prevailing opinion, it was obscured from the view of the baseball players. It was also obscured from the view of the defendants. No witness saw it there before the accident. If its presence there constituted a hazard to the players, defendants could not be held liable for permitting it to be there unless and until they had notice thereof. There is no proof of actual notice and no proof that the condition existed for any length of time sufficient to constitute constructive notice. On this record it cannot be found that the accident resulted from any lack of proper supervision by the defendants. *351(Peterson v. City of New York, 267 N. Y. 204; Thompson v. Board of Educ., 280 N. Y. 92.) “ To cast [defendants] in damages under the facts of this case would be thrusting upon teachers a responsibility greater than reasonable caution requires.” (Thompson v. Board of Educ., 255 App. Div. 786, dissenting memorandum Lazansky, P. J., and Adel, J., revd. 280 N. Y. 92.) Adequate supervision would not have prevented the accident. (Turano v. City of New York, 17 A D 2d 191.)
Bastow and McClusky, JJ., concur with Halpern, J.; Williams, P. J., and Henry, J., dissent and vote to reverse and grant a new trial in opinion.
Judgment affirmed, with costs.