159 N.Y.S. 712 | N.Y. App. Term. | 1916
The contract in this case contains no clause providing that a felonious abstraction must be shown by direct evidence, and the court lias no right to malee such a contract for the parties. In this case the trial judge has held that the circumstantial evidence shows a felonious abstraction, and if the plaintiff’s evidence is sufficient to raise an inference to this effect we must affirm the judgment. The plaintiff’s evidence shows that his wife placed two diamond rings in a Japanese box. The box was placed in a drawer, and the key to the drawer was hidden under some clothes. No one but the plaintiff’s wife and daughter knew where the key was placed. A few days after the diamond rings were placed in the box, the plaintiff’s wife looked for them, and they were not in the box. Neither the plaintiff’s wife nor daughter liad taken them out. The box contained other jewelry, but the missing rings were the only articles of value. The plaintiff and his family
This testimony for the plaintiff was not directly contradicted, and the trial justice has weighed the credibility of the story, and has believed it. Upon this appeal the only serious question is whether this testimony 'justifies the inference that the jewelry was 'stolen. It establishes that the jewelry was placed in a box which only two persons were authorized to open. Neither of these persons took out the jewelry. It follows with reasonable probability that some unauthorized person opened the box and extracted the only articles of value. No unauthorized person would have taken the jewelry, except with felonious intent.
It follows that the judgment rests, not on mere suspicion, but on logical inference, and should be affirmed, with $25 costs. All concur.