Opinion
June, 1935.
Present — Hill, P.J., McNamee, Crapser, Bliss and Heffernan, JJ. [ 152 Misc. 392.]
The plaintiff went to the store of the defendant with her daughter; she observed the floor as she walked by the counter where she afterwards slipped and says that there was nothing on the floor. She claims to have seen the manager brushing off the counter which contained children's bootees and that they were held together by rubber bands and that when her daughter returned, she started to walk out the same way that she had come in and that she slipped and fell to the floor. After the plaintiff's fall, defendant's assistant manager picked up one rubber band from the floor and the plaintiff said that must have been what she slipped on. The plaintiff claims that there were three small rubber bands rolled together which caused her to slip. The accident was an unusual one. It was not such as the defendant was called on to guard against — no notice being shown that the bands were on the floor. There is insufficient proof of lack of care on the part of the defendant or its agents or servants. Order and judgment unanimously affirmed, with costs.