(78 Misc. Rep. 171.)

WIMPFHEIMER v. A. T. DEMAREST & CO.

(Supreme Court, Appellate Term, First Department. November 8, 1912.) LIVERY STABLE KEEPERS (§ 7*)—INJURY TO AUTOMOBILE-PRESUMPTIONS AND BURDEN OF PROOF.

Where plaintiff delivered to defendant for storage in his garage an auto body in apparently good condition, and the same, when returned nearly three years later, was broken, and the upholstery moth-eaten, and an expert proved that, by adopting the usual methods of caring for the car and reporting to the owner when the existence of moths was discovered, the body would not have been damaged to the extent it was, there was a prima facie case of negligence of defendant, who, to escape liability, must prove the degree of care exercised by him, the conditions existing in the garage, the improbability of moths frequenting the place, or that it was not customary for warehousemen, storing automobiles, to inspect and report their condition, and knowledge by plaintiff of such custom.

[Ed. Note.-For other cases, see Livery Stable Keepers, Cent. Dig. § 6; Dec. Dig. 7.*]

Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Action by Charles A. Wimpfheimer against A. T. Demarest & Co. From a judgment of dismissal at the close of the case of plaintiff, he appeals. Reversed, and new trial ordered.

Argued October term, 1912, before SEABURY, GUY, and BIJUR, JJ.

James, Schell & Elkus, of New York City (Joseph M. Proskauer and Russell H. Kittel, both of New York City, of counsel), for appellant.

Morris & Plante, of New York City (Guthrie B. Plante, of New York City, of counsel), for respondents.

GUY, J. Appeal by plaintiff from a judgment dismissing the complaint at the close of plaintiff's case. The action was brought to recover damages for negligence of the defendants in permitting the upholstery of the body of plaintiff's automobile, which was stored with defendants, to become moth-eaten and broken during the time it was stored with defendants. Plaintiff proved that when the auto body, a high-class French body, was stored with defendants in April or May, 1908, it was apparently in perfect condition as far as the upholstery was concerned, and the woodwork was in good condition, except for simple wear and tear; that it remained with defendants until December, 1911, a period of about three years, and when redelivered to plaintiff was broken in places and the upholstery moth-eaten, so as to render it worthless."

Plaintiff called an expert witness, who testified as to the fair and reasonable cost of repairing the body of the car, including the upholstery. On the cross-examination of this witness, he admitted that it was possible that an inspection at the time of the delivery of the auto body would not have shown whether there were moths *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

in the upholstery or not; that it was possible there were moth eggs. in the upholstery then. This witness further testified, however, that the proper method of procedure for the warehouseman was to inspect the body of the car from time to time, and, if he discovered moths, to notify the owner and get permission to do the necessary work to get rid of them, which would consist of brushing the cloth constantly and saturating it with turpentine; that it is not a common thing for moths to be in hair when the body is in use, unless the hair is greasy; that the condition of the auto body when it was taken away was such as to indicate that it had not been brushed. At the conclusion of plaintiff's case, the court dismissed the complaint, stating that it did so because:

"From the testimony of the expert put on the stand by the plaintiff it appears that the damage might have been done on either of two theories; that is, either that the moths might have been introduced through the negligence of the defendant in not securing it from contact with other articles in which there were moths, or from the fact that the moths were already at the time of the deposit in the interior of the upholstery."

The dismissal of the complaint was error. Plaintiff, having proved the delivery to defendants of the auto body in apparently good condition and the return thereof in a badly damaged condition, and having proved by an expert witness that by the adoption of customary and usual methods of caring for the car, and reporting to the owner when the existence of moths was discovered, the body would not have been damaged to the extent that it was damaged. at the time of redelivery to plaintiff, made out a prima facie case of negligence on the part of the defendants, which would render defendants liable, "unless the defendants were prepared to show that the damage resulted from causes for which they were not responsible." Herzig v. New York Cold Storage Co., 115 App. Div. 40, 100 N. Y. Supp. 603. This evidence of the plaintiff might have been rebutted by the defendants showing the degree of care exercised by them, the conditions existing in the garage, the impossibility or improbability of moths frequenting a place where large quantities of gasoline were in constant use, or that it was not customary for warehouses engaged in storing automobiles to inspect them and report their condition to the owners, and by establishing the knowledge of the plaintiff on that point. But these were all matters of defense, the burden of establishing which was upon the defendants, and upon which, even had such evidence been introduced by the defendants, plaintiff was entitled to go to the jury on the issue whether defendants had exercised reasonable care in safeguarding the property placed by plaintiff in their custody.

The judgment must therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

BERNSTEIN v. FULLER'S EXPRESS CO.

(Supreme Court, Appellate Term, First Department. November 8, 1912.) EVIDENCE (§ 263*)—ADMISSIONS-RIGHT TO EXPLAIN.

Where, in an action for the value of goods alleged to have been delivered by the plaintiff to the defendant, plaintiff placed in evidence, to show a delivery, admissions of the defendant's agent, a refusal to permit such agent to explain the admissions, by showing the circumstances under which they were made, was improper.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1022-1027; Dec. Dig. § 263.*]

Appeal from City Court of New York, Trial Term.

Action by Hyman Bernstein against Fuller's Express Company. From a judgment for plaintiff, and an order denying a motion for new trial, defendant appeals. Reversed, and new trial ordered.

Argued October term, 1912, before SEABURY, GUY, and BIJUR, JJ.

Powers & Kaplan, of New York City (Abraham Kaplan, of New York City, of counsel), for appellant.

Henry Kuntz, of New York City (Abraham P. Wilkes, of New York City, of counsel), for respondent.

BIJUR, J. This action was brought to recover the value of goods claimed to have been delivered by plaintiff to defendant, and the only question litigated was whether there had been a delivery. Even a cursory examination of the record indicates that there was no proof of delivery.

Plaintiff was forced to rely upon admissions made by defendant's claim agent in two letters which he had written-one to the defendant's vice president and the other to the plaintiff. When the agent undertook to explain these admissions, by showing the circumstances under which they had been made, his evidence was excluded, on the objection of plaintiff's counsel, so that he was not permitted to tell of a prior telephone conversation with plaintiff, nor to put in evidence a waybill, which the witness swore he had before him at the time he wrote the letters. The bill was, however, marked for identification. It contains certain entries in such form that plaintiff's agent was, no doubt, misled into believing them to represent a shipment of the goods claimed to have been delivered by plaintiff, although it is evident that they referred to something else. The principle is well established that an admission may always be fully explained by the person against whom it is offered. See Cahill v. Torrey, 121 N. Y. Supp. 598, and cases there cited.

As there is no foundation for the verdict, other than these alleged admissions, and as defendant's witness should have been afforded ample opportunity to explain them, the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

BRYANT v. AUCHMUTY.

(Supreme Court, Appellate Term, First Department. November 8, 1912.) BAILMENT (8 31*)-NEGLIGENCE OF BAILEE-PRIMA FACIE CASE.

Proof that a bailee failed to return the article bailed on demand established a prima facie case of negligence on his part.

[Ed. Note.-For other cases, see Bailment, Cent. Dig. §§ 124-131; Dec. Dig. 31.*]

Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Action by Mary S. M. Bryant against Ellen S. Auchmuty. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.

Argued October term, 1912, before SEABURY, GUY, and BIJUR, JJ.

Ehrich & Wheeler, of New York City (Manfred W. Ehrich, of New York City, of counsel), for appellant.

James H. Hickey, of New York City, for respondent.

SEABURY, J. Upon a former appeal in this case (129 N. Y. Supp. 471), the court held that the relation existing between the plaintiff and defendant as to the plaintiff's trunk was that of bailor and bailee. The failure of the defendant to deliver the trunk on demand was prima facie evidence of negligence. Claflin v. Meyer, 75 N. Y. 260, 31 Am. Rep. 467. The duty of the defendant as bailee of the trunk was to return it on demand, or explain its loss in some satisfactory way. Hasbrouck v. N. Y. Central & H. R. R. Co., 202 N. Y. 363, 374, 95 N. E. 808, 35 L. R. A. (N. S.) 537.

It is true that the defendant offered proof to show that her agent had exercised some care in relation to the trunk, but this evidence failed to explain in any way what became of the trunk. The counsel for the plaintiff asked the court to charge that, in view of the fact that the trunk had not been returned on demand, the defendant was bound to explain the loss. This charge the learned court below refused to make, and the plaintiff's counsel excepted. We think the refusal so to charge was error. In Ouderkirk v. C. N. Bank, 119 N. Y. 263, 267, 23 N. E. 875, the court said: "It necessarily follows, from the nature of the obligation and the refusal to return the property, that the burden of showing the circumstances of the loss rests upon the bailee, and, unless the evidence shows the exercise of due care by him, according to the nature of the bailment, he will be held responsible for the breach of his contract to return the property bailed."

A review of the record satisfies us that the defendant did not exercise due care, according to the nature of the bailment. In view of this condition of the evidence, it is apparent that, as the trunk was not returned on demand, the erroneous refusal of the court below to charge that the burden was upon the bailee to explain the loss of the trunk, was prejudicial to the plaintiff.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

(78 Misc. Rep. 123.)

BREWSTER v. SILVERSTEIN.

(Supreme Court, Appellate Term, First Department. November 8, 1912.) 1. ACCORD AND SATISFACTION (§ 27*)-ACTION FOR RENT-DIRECTION OF VER

DICT.

Where, in an action for rent, it appeared that the plaintiff accepted and cashed the tenant's check, after being informed by him that he regarded the lease as terminated and that he tendered the check in full payment, and the evidence presented a question of fact as to whether such acceptance constituted accord and satisfaction, it was error to direct a verdict for plaintiff.

[Ed. Note. For other cases, see Accord and Satisfaction, Cent. Dig. §§ 31, 59, 83, 97, 110, 135, 150; Dec. Dig. § 27.*]

2. ACCORD AND SATISFACTION (§ 10*)—PART PAYMENT ON UNLIQUIDATED CLAIM.

The rule that the payment of less than the amount of a debt, which is liquidated and certain, does not constitute accord and satisfaction, has no application, where the debtor has a claim for damages against the creditor; the effect of the debtor's claim of offset being to render the whole claim unliquidated.

[Ed. Note.-For other cases, see Accord and Satisfaction, Cent. Dig. §§ 67-74; Dec. Dig. § 10.*]

3. ACCORD AND SATISFACTION (§ 11*)-PART PAYMENT-ACCEPTANCE AS FULL PAYMENT.

Where a tenant notified the landlord that he regarded the lease as terminated upon a certain date, on which the premises were rendered untenantable by fire, and tendered a check for the amount of the rent up to such date, stating on its face that it was in full payment of all claims, the landlord could not retain the check and repudiate such stated condition.

[Ed. Note. For other cases, see Accord and Satisfaction, Cent. Dig. §§ 75-82; Dec. Dig. § 11.*]

Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by Richard L. Brewster against Samuel J. Silverstein. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

See, also, 133 N. Y. Supp. 473.

Argued October term, 1912, before SEABURY, GUY, and BIJUR, JJ.

Burnstine & Geist, of New York City (Jos. G. Cohen, of New York City, of counsel), for appellant.

Arthur D. Greenfield and Thomas G. Prioleau, both of New York City, for respondent.

SEABURY, J. The plaintiff sues to recover rent for the months of December, 1910, and January, 1911, for a loft owned by him and occupied by the defendant as tenant under a written lease for a period of two years, at the monthly rental of $113.33, payable on the 1st day of each month. In the lease, the lessor covenanted that, in the event of damage to the demised premises by fire, he would repair the damage forthwith. On December 12, 1910, the

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes