84 N.Y.S. 260 | N.Y. App. Term. | 1903
On February 24, 1903, plaintiff entered defendant’s restaurant for lunch. It was a so-called “quick-lunch restaurant,” where no rule of etiquette required the removal of either hat or overcoat by the customers. Nevertheless there were nails in the walls upon which customers could hang their hats and overcoats, if they wished. Also upon the walls were posted large printed placards containing the words: “Numerous Thieves. Watch your Overcoat and Hat.” Plaintiff admits that he had observed these placards. Upon each table were four bills of fare, upon the bottom
The rules of law applicable here have been clearly laid down by this court in the case of Montgomery v. Ladjing, 30 Misc. Rep. 96, 61 N. Y. Supp. 840. We think the plaintiff failed to sustain the burden of showing absence of such care, in respect of the plaintiff’s overcoat, as the circumstances required. On the contrary, it appears from uncontradicted testimony that the defendant had in attendance a manager, constantly on the watch to protect the property of his patrons; that he provided a system of checking, which, if availed of by patrons, afforded ample protection for overcoats; and that conspicious placards were posted containing warning against thieves. Moreover, there is no sufficient evidence of the value of the coat, since the only testimony on this question is hearsay. Upon a careful reading of all the testimony, it must be said that the facts essential to the plaintiff’s right to recover are not established by a fair preponderance of evidence.
The judgment must be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.