146 Misc. 377 | N.Y. App. Term. | 1933
On the former trial defendant produced ample evidence of due care on its part and plaintiff gave no evidence to contradict this. This court thereupon reversed a judgment in plaintiff’s favor because it had not met the burden of proof which the law cast upon it. The presumption in plaintiff’s favor had been overcome by defendant’s uncontradicted proof. On the present trial defendant rested without offering any proof whatever. Assuming that plaintiff’s present proof showed that- the bailed chattel had been stolen from defendant and damaged by the thief, this, under the authorities, did not suffice to relieve defendant as it was required to show a loss by an occurrence beyond its control, and this meant proof by it of the circumstances of the loss and at least prima facie evidence of due care on its part. (Ouderkirk v. Central National Bank, 119 N. Y. 263; Federal Ins. Co. v. Lindsley, 132 Misc. 54.) On the present record plaintiff was entitled to judgment.
Judgment reversed, with thirty dollars costs, and judgment directed for the plaintiff for $158.97, with interest and costs.
All concur; present, Levy, Callahan and Untermyer, JJ.
