
    Martin P. Jones, Respondent, v. Charles S. Levy, Appellant.
    Negligence — Actions — Evidence — Weight and sufficiency.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, sixth district, borough of Manhattan.
    Weschler & Myers, for appellant.
    George E. Fleming, for respondent.
   Scott, J.

The defendant is the proprietor of a bath having hot rooms, massage rooms and a swimming pool. It appears to be chstomary to serve drinks in all parts of the bath, including, the room in which the plunge is, and the waiters, from time to time, collect the empty glasses. There are steps leading into the pool at either end, and along the sides are marble slabs or shelves, under which are brass handrails. The plaintiff and some friends went to the bath rather late at night. Plaintiff was sitting on the marble slab and, wishing to turn around in order to slide into the water backwards, so that he might not hit the brass rail, put his hand on a bar glass that had been left on the marble slab, with the result that a sliver of glass ran into his thumb. I do not think that the facts showed any negligence on the part of defendant or his employees. There is nothing to show who placed the glass where it was, or how long it had been there. The place was brilliantly lighted and the glass should have been at least as clearly visible to the plaintiff as to defendant’s waiters. If it had been shown that the glass had been allowed to remain where it was for any considerable time, it might be said that the servants were negligent; but there is no such evidence in the case. Plaintiff’s injuries were trifling and the damages given were, at least, ample.

On the whole, we think that the judgment should be reversed.

O’Gorman and Newburger, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event  