
    James Pfannenstiel, an Infant, by William Pfannenstiel, His Guardian ad Litem, Respondent, v. Luckey, Platt & Company, Inc., Appellant.
   Judgment and order reversed upon the law and the facts and a new trial granted, costs to appellant to abide the event. The court is of opinion that it was error to admit testimony of the prior accident. Lazansky, P. J., Carswell and Scudder, JJ., concur; Rich and Hagarty, JJ., dissent, with the following memorandum: Plaintiff, aged five years, was injured in defendant’s department store by a washing machine in which his hand was caught, and to which he was attracted, in the absence of the demonstrator, by the agitation of the water. The age of the child, the natural attractiveness of the machine to children, and the fact that the machine was not so identified with defendant’s business as to justify the expectation of customers in finding it there and in operation, distinguish this case, in our opinion, from Connelly v. Carrig (244 N. Y. 81) and Kwiatkousky v. Nadolny (222 App. Div. 832), upon which the appellant relies. While we are of opinion that the learned trial court should have excluded evidence of the prior accident, we are also of opinion that such evidence was harmless. There was sufficient proof without this that children gathered about the machine to watch its operation. The evidence is not reflected in an excessive verdict.* The judgment and order should be affirmed under section 106 of the Civil Practice Act.  