(dissenting). This is an appeal by defendants Milton and Morris Feuer from a judgment entered in favor of plaintiff after' a trial before the court without a jury. Henrietta Kuchlik based her claim upon the alleged negligence of the appellants, whereas Isadore Kuchlik, her father, sought a recovery for the loss of her services.
The defendant Milton Feuer, a boy fifteen years of age, shot the *342plaintiff, a girl fourteen years of age, causing severe injury to her right eye, Milton Feuer was properly found chargeable with negligence and Henrietta free from contributory negligence.
At the time of the accident — there is no claim here of an intent to do bodily harm — Milton Feuer had in his possession an air rifle. The accident happened on the evening of March 4, 1932. Henrietta had been playing in Feuer's cellar with several others about her age until about nine o’clock. Shortly thereafter while walking on Manida street, in the county of Bronx, she was shot in the foot by Milton Feuer, who was using a “ BB ” gun. In company with one Raymond Stromwasser, who obtained a gun from another boy, named Julie Jacobs, she gave chase to Milton. They ran into a lot where Milton and Raymond were firing at each other. While Henrietta was in the act of telling them to stop, a shot from the “ BB ” gun, which Milton was using, struck her eye.
The father, Morris Feuer, and the mother, Pearl Feuer, were joined as codefendants on the theory that (1) they gave the boy the air rifle and were responsible for the boy's negligence in its use; (2) they were guilty of negligence in knowingly permitting the boy to use a dangerous weapon. If either parent had given Milton an air rifle, the one who had done so would have been guilty of a misdemeanor under section 1896 of the Penal Law, which reads in part as follows: “A person who * * * offers, sells, loans, leases, or gives * * * any airgun, springgun, or other instrument or weapon in which the propelling force is a spring or air or any instrument or weapon commonly known as a toy pistol * * * to any person under the age of sixteen years, is guilty of a misdemeanor.”
If one of his parents had given an air gun to Milton and he had used it in a negligent manner, thereby inflicting injury upon an' innocent third party, who was in no way negligent, the guilty parent would have to respond in damages for the injuries inflicted. There is no evidence in this record to indicate that either parent had given an air gun to Milton, The judgment was entered against Morris Feuer on the theory that he was guilty of negligence in knowingly permitting the boy to use an air gun, The complaint in so far as it related to the defendant Pearl Feuer, the mother of Milton, was dismissed on the merits.
In this State there are no oases which support the theory that the responsibility should be fixed upon the father for knowingly permitting his child to use a dangerous instrument. Under ordinary conditions, a parent is not liable for the torts of a child. If the parent is guilty of a violation of any statute and as a result thereof places the child in a position to cause injury to others, liability *343would undoubtedly follow. In Schultz v. Morrison (91 Mise. 248; affd., 172 App. Div. 940), which is cited in the opinion of the trial court, it appeared that the defendant had given express permission to his son, a boy sixteen years of age, to drive his car in violation of the provisions of the Highway Law. The father was properly held chargeable for the acts of his son for negligently allowing him to operate the car in violation of the law. Here we are asked to go a step further in order to sustain this judgment and hold the father for permitting the boy to use an air gun, even though he did not make it possible for his son to possess it. There is no claim made that the father was present on the night of the accident or at any time when his son Milton used an air gun. The court at Trial Term said in part: “ From the evidence in this case, although some of it is highly suspicious in Character, it is not possible to find that either parent gave the rifle to the boy. It is the fair inference to be drawn from their testimony that the gun belonged to the boy and that his parents knew he was using it. That the evidence on this point is circumstantial rather than direct in no way detracts from its weight. ‘ Knowledge may be established by circumstantial evidence, in the face even of professions of ignorance.’ (Woloszynowski v. N. Y. C. R. R. Co., 254 N. Y. 206, 208.) That being so, the father, under the law the guardian of the boy, was guilty of negligence in knowingly permitting his son to use a dangerous instrument and must respond in damages for the boy’s careless use of the weapon.”
There is authority for the last statement. It may be conceded for the purposes of this case that a father, who knowingly permitted his son to use a dangerous weapon, would be answerable in damages for the boy’s careless use of it. That seems to be the rule laid down in Gudziewski v. Stemplesky (263 Mass. 103 [1928]). Still in applying that rule, the facts and circumstances in each particular case must be considered to determine whether or not there is evidence sufficient to indicate that the parent knowingly permitted his son to use a dangerous instrument. In the case of Gudziewski v. Stemplesky, (supra) the court stated that “.The evidence warranted a finding that Stephen’s mother had actual knowledge that he had an air gun and used it indiscriminately and mischievously,” and furthermore, while there was ample evidence to indicate that the father also had knowledge,-still he failed to testify.
In this case Morris Feuer, the father, did testify. He stated in substance that he occupied the upper floor, consisting of seven rooms, at No. 722 Manida street, with his wife, his son Milton and a daughter. He was engaged in the hardware business in the lower part of the city. He was accustomed to leave his home at about *344seven-thirty or eight in the morning. Ordinarily he did not return until seven-thirty or eight o’clock in the evening. On Saturday nights he closed his store at ten o’clock. He was at home every Sunday. He never saw an air gun in his house; he did not buy one for Milton, nor did he give him any money to purchase one, and furthermore he never saw Milton use a gun. His testimony was not impeached in any manner. Pearl Feuer, the wife of Morris, denied that Milton ever possessed an air gun. Milton Feuer denied that he ever owned a gun.
Respondents seek to sustain the judgment as against the appellant Morris Feuer on the theory that the circumstantial evidence in this case as to ownership and possession points to the fact that Milton owned a gun and that his parents knew he was using it. In Ruppert v. Brooklyn Heights R. R. Co. (154 N. Y. 90, 94), Judge O’Brien said: “ In order to prove a fact by circumstances there should be positive proof of the facts from which the inference or conclusion is to be drawn. The circumstances themselves must be shown and not left to rest in conjecture, and when shown it must appear that the inference sought is the only one which can fairly and reasonably be drawn from these facts.”
The only evidence which might indicate that Milton ever had an air gun in his possession prior to the date of the accident was adduced in the respondents’ case. Henrietta Kuchlik stated that early in the month of January, 1932, she was in the house with several other boys and girls. At about five o’clock in the afternoon, she had occasion to go to Milton’s bedroom and opened the door. There she saw Milton and two girls. The girls were watching Milton use an air gun. She remained there for about two minutes. At that time Milton’s mother was in the kitchen and his father was not at home. She further testified that she had been on very friendly terms with Milton and his sister for about nine years and was accustomed to visit the house daily. While she had occasion to go about the house and to a playroom which the children had fixed up in the basement, she did not claim that she had ever seen an air gun in the house except on that one occasion.
Later, on the night of February fifth, she saw Milton, while in company with other boys, shoot at an electric light globe on Manida street. She could not say whether or not there was more than one gun at that time. One Julie Jacobs had a “ BB ” gun on that occasion. She fixed the time at about seven o’clock in the evening.
One Esther Shapiro testified that she saw the Feuer boy with a gun two days before the accident about four o’clock in the afternoon, while she was talking to a Mrs. Schur. At first, she stated, the boy walked “ out ” with a gun and then changed her statement and said *345that he walked “ in ” with a gun; that Mrs. Schur told Milton to put away the gun “ because he is going to be able to hurt somebody.” At this point it might be well to remark in passing that Mrs. Schur denied absolutely, when called as a witness for the defense, that anything of the kind had ever occurred.
One Mildred Kaufman testified that she formerly lived at 671 Manida street; about three nights before the accident “ I passed Manida street and I seen a group of boys, and I seen Milton with a gun. You see, my husband has a garage right near Kuchlik’s house, so I seen a group of boys, and I passed and I told them to be careful, and they were careful, and I walked by.” There were about five or six boys in the group. Although she lived in the neighborhood for a period of four years, the only time she saw Milton use a “ BB ” gun was on that night, and he was the only boy she recognized. She first told this story to Mrs. Kuchlik about a week after the accident happened. However she was not called as a witness in the Magistrate’s Court. About two weeks prior to the trial of this case, she was taken by the plaintiff Isadore Kuchlik to his attorney’s office.
Plaintiff’s witness, Martin Kaplan, said that he did not see a gun in the Feuer’s house subsequent to the accident. It appeared that he had testified in the Magistrate’s Court on a previous occasion. There he said that he had seen a gun in Milton’s possession on a Sunday evening prior to his appearance as a witness in the Magistrate’s Court. Where he had seen it does not appear. The explanation given by the witness was that he had reference to the gun which he had seen in the possession of Milton on the night of the accident. It should be borne in mind that this witness was called by the plaintiff who vouched for his reliability and credibility. (Hanrahan v. New York Edison Co., 238 N. Y. 194.)
There is no evidence in this record, either direct or circumstantial, to show that the appellant Morris Feuer gave his son an air rifle or that he knowingly permitted his son to possess or use one. The positive proof of the facts from which the court at Trial Term inferred that the gun belonged to the boy, and that his parents knew he was using it, is certainly lacking in this case.
For the reasons set forth herein, I feel constrained to dissent from the ruling of the majority of the court and to vote for a reversal of the judgment and a dismissal of the complaint upon the merits, as against the defendant Morris Feuer. In all other respects the judgment should be affirmed.
Martin, J., concurs.
Judgment affirmed, with costs.