
    Bridget Geelan, Respondent, v. Sarah E. Cooke, Appellant.
    (Supreme Court, Appellate Term,
    May, 1898.)
    Hegligence — A person injured in an auction-room by the act of a third party.
    The proprietor of a public auction-room is not liable to an intending bidder who, while standing in the room with her back to three tables placed on top of each other, was injured because a stranger,. while handling the uppermost table, permitted it. to fall upon the bidder.
    Appeal from a judgment rendered in the Municipal Court of the City of Mew York, borough of Manhattan, ninth district, in favor of the plaintiff.
    Benjamin & Loeser, for appellant.
    O. J. Hochstadter, for respondent.
   Beekman, P. J.

The plaintiff has recovered .judgment against the defendant for damages, flowing from injuries which, she .¡has alleged and which the court below.has found to have been caused by the negligence of the defendant. The facts ¡of .the case are practically undisputed. The plaintiff testified that she went into the auction room ¡of the defendant, who seems to have been engaged in thé business of selling furniture and other articles at public auction, for-the purpose of bidding at a sale which was then going on in that place. After she had entered the- store, ..she observed, among other property apparently to be sold, three tables which were placed one upon' the other, the table at the top being a small' one weighing about ten pounds. She states that she was standing with her back to these tables when she heard a rattle behind her, and was immediately'struck by the falling .of the upper table and suffered the injuries complained of. ■ The witnesses: on behalf of the defendant testified that the fall of the table "was occasioned by the act of ,a stranger who wias attending the sale and who was seen by them handling the table, and that it fell while it was in Ms hands. This testimony was given not .only by an employee of the defendant, but also, by another person, a bystander, who was entirely disinterested. The evidence- thus given was not contradicted by the plaintiff. She herself was not in, a position, to oh-serve the cause of the occurrence, nor did she produce any. witness for the purpose of giving any other version of it. Hpon this state of the fact it is obvious that there was no evidence of negligence on the part of the defendant, and the justice below should have dismissed the complaint. Steiker v. Plath, 19 App. Div. 376.

Judgment reversed and a new trial ordered, with costs to the appellant, to abide the event.

Gtldebsleeve and Giegerich, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event. I  