Glass v. Hauser

40 Misc. 661 | N.Y. App. Term. | 1903

Gildersleeve, J.

The pleadings are oral. The complaint is for “ damages for breach of contract,” and the answer is a “ general denial, and demand for bill of particulars.” The plaintiff furnished a bill of particulars, setting forth that on September 20. 1901, the plaintiff stored with defendant certain specified merchandise ; that plaintiff subsequently demanded the return of said goods, but defendant refused to deliver the same; and that the value of the goods was -the sum of $363.05. On the trial, the plaintiff proved the storage of the goods, the demand and the refusal, and offered some evidence tending to show the value of the articles stored. The defendant, on the other hand, proved that in the case of Weissman v. Hauser, the goods in question were replevied by a marshal, and copies of the summons, affidavit, undertaking and requisition' were served upon defendant by the marshal, who, however, left the goods with defendant, but took a receipt therefor. This is sufficient to constitute a valid levy by the marshal. See Marshall v. Friend, 33 Misc. Rep. 447. Hone of the exhibits is attached to the record, but the above statement of facts appears to be conceded by counsel for the respective parties. The rule is that a bailee for reward may excuse himself for a failure to deliver the property to the bailor, when called upon to do so, by showing that the property was taken from his custody or control under the authority of valid legal process, and that, within a reasonable time, he gave notice of the fact to the owner. See Roberts v. Stuyvesant Safe Deposit Co., 123 N. Y. 61, 65.

A former judgment in the case at bar was reversed by this court on the ground that defendant had not shown that the process was legal or when the seizure was made or the plaintiff apprised. Glass v. Hauser, 38 Misc. Rep. 780.

On the appeal before us the validity of the process does not appear to be questioned, and the defendant and the marshal testify as to the service of the papers and the levy, which is alleged to have taken place on September 30, 1901. The defendant swears that he was unable to locate the plaintiff, although he used reasonable efforts to do so, but that he did notify the brother of plaintiff who called on the day of the levy, and that he tried to learn from the brother the plaintiff’s address, and showed the brother the papers in the replevin action that had heen served on him. The brother denies that he showed him the papers, or tried to learn plaintiff’s address. The defendant also says that he tried to find plaintiff’s address in the directory, but could not. The brother of plaintiff swears that he called with five dollars, and demanded the goods, and that defendant’s manager told him that “ the goods were out,” but said nothing about replevin proceedings. There is considerable dispute between the witnesses for the respective parties as to many questions of fact. The justice found for the plaintiff in the sum of two hundred and sixty-five dollars and five cents damages, and twenty dollars and fifteen cents costs.

As we have said, the exhibits are not annexed to the record, but it is, apparently, conceded that the process was a valid and legal one. It is claimed by plaintiff, however, that defendant was not released from liability, under his contract of storage, for the reason that he gave no notice to the plaintiff of the manner in Avhieh the goods were taken, so as to enable the plaintiff to assert his rights to the property in question. The defendant, as we have seen, claims he notified plaintiff’s brother, who seems to have represented plaintiff in the storage matter, on the same day that the levy was made in the replevin action. This is denied by the brother. It is not denied, however, that defendant looked in the directory and endeavored to locate the plaintiff for the purpose of notifying him. The issue the trial justice had to decide turned upon this proposition, viz.: Did the defendant, under the circumstances, take the necessary precautions and make such reasonable efforts to advise the bailor of the seizure, by legal process, as to exonerate him from liability ?

We think there is a strong preponderance of evidence in support of the defendant’s claim that he did. The finding of the court below on this question must be said to be against the weight of evidence. The record as we have seen, is very imperfect by reason of the absence of all exhibits. It seems to be conceded that the warehouse receipt is in the name of “ E. Glass,” and that no address appears upon it. The suit was brought in the name of Ezrael Glass, and remained in that name until the second trial, when the name of the claimant of the property appeared to be “ Harris Glass,” and the court then ordered the name in the summons to be changed from “ Ezrael ” to “ Harris.” In the plaintiff’s notice of settlement of the case herein on appeal the plaintiff is put down as “ Israel Glass.” This is also true of the bill of particulars. There is little wonder that, in the absence of any address on the warehouse receipt, which was given, in the name of and to one “ E. Glass,” that efforts did not result, in unearthing the real claimant of the property, to wit, “ Harris Glass,” and apprise him of the replevin proceedings. :

We think that, under the circumstances established by the testimony here, the defendant did all that could reasonably be expected of him to inform the plaintiff of the seizure of the goods by the marshal in the Weissman action. The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Fbeedmah, P. J., and Giegekioh, J., concur.

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