37 A.D.2d 530 | N.Y. App. Div. | 1971
— Decree of Surrogate’s Court, Bronx County, entered January 7, 1971, unanimously reversed, on the law and the facts and in the interest of justice, and the proceeding remanded for a new trial to be held to a jury in Supreme Court, Bronx County with costs and disbursements to abide the event. The proceeding involves a certain ring turned over for safekeeping to respondent-appellant hospital on admission of decedent; the crux of the dispute is whether the ring was returned to decedent prior to her death. After nonjury trial, the Surrogate found for petitioner-respondent administrator of the decedent’s estate, directing return of the ring or, in default thereof, payment of its value, found to be $20,000. Though the method of safekeeping and receipting used by the hospital’s responsible employee was unusual, to say the least, it apparently sufficed as to those items eoncededly turned over to decedent, of great aggregate value themselves; it seems, therefore, that no adverse inference flows from that factor alone. Proof of value of the missing ring was not conclusive in that there was not firm evidence of identity of the missing article with that spoken of by the valuing expert. And, finally, the
