212 A.D. 193 | N.Y. App. Div. | 1925
The plaintiff, in his complaint, alleged that he was the owner of an automobile; that the defendant conducted a garage for the storage of automobiles; that the defendant agreed to store the plaintiff’s car in his garage; that the plaintiff left his car in the defendant’s garage in the possession of the defendant and his agents; that the defendant did not use proper care to keep the plaintiff’s car; that when the plaintiff demanded his car the defendant failed and refused to deliver it to the plaintiff; that the car was lost to the plaintiff through the misconduct and neglect of the defendant. The defendant, in his answer, admitted that the contract of storage was made and that the plaintiff’s car was left in his garage, but denied the other allegations of the complaint. Upon the trial, the plaintiff, relying upon the admissions in the pleadings and upon a presumption of fault on the part of the defendant arising from his failure to redeliver the car, gave evidence of nothing more than the market value of his car. The defendant gave evidence tending to prove that the car had feloniously been taken from his possession. The plaintiff, on rebuttal, gave no further affirmative proof in relation to the disappearance of the car. The jury found a verdict in favor of the plaintiff for the value of the car. The trial judge set the verdict aside on the ground, as stated by him in an opinion, that upon the whole case the plaintiff had failed to make out a cause of action. (123 Mise. 865.)
It is well settled that a bailee is not an insurer; that he is liable to the bailor for a loss of the thing bailed only in an action of negligence or conversion; that in such an action the burden of establishing conversion or negligence rests upon the bailor; that upon giving proof of the bailment and the failure to redeliver, a presumption arises that the bailee has converted the thing bailed or negligently caused its loss; that this presumption operates to cast upon the bailee the burden of producing proof in explanation of the loss; that, in default of such proof, the bailor is entitled, as a matter of law, to a verdict in his favor. (Lamb v. Camden & Amboy R. R. & T. Co., 46 N. Y. 271; Russell Mfg. Co. v. N. H.
The defendant was accustomed to store about twenty cars in his garage. He had but one employee. Neither the defendant nor the employee remained at the garage later than midnight. The garage was furnished with double doors capable of being securely fastened upon the inside by iron bars fitting into slots. One of these doors was provided with a postern door covering an opening in the main door. This lesser door was provided
The order should be affirmed, with costs.
Order and judgment unanimously affirmed, with costs.