gence, since the failure to return on demand constituted a prima facie case, which was not overcome by defendant's evidence.

[Ed. Note.-For other cases, see Bailment, Cent. Dig. 88 124-131; Dec. Dig. 31.*]

4. NEGLIGENCE (§ 134*)-PRESUMPTION-EFFECT OF PRESUMPTION.

Where the law presumes negligence, the presumption takes the place of proof, and, while not conclusive, can be overcome only by evidence of a substantial and persuasive character.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 267-270, 272, 273; Dec. Dig. § 134.*]

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

Action by Harry B. Thorn against Isidor Straus and another, doing business as R. H. Macy & Co. From a judgment for defendants, after a trial by the court without a jury, plaintiff appeals. Reversed, and new trial ordered.

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

Ernest W. Wyatt, of Yonkers, for appellant.

Wise & Seligsberg, of New York City (Isaac Lande, of New York City, of counsel), for respondents.

SEABURY, J. This action is brought for the breach of a bailee's contract to return goods delivered to it by the plaintiff. The proof showed that the plaintiff delivered to the defendant 34 photographic films or negatives, for the purpose of having prints made therefrom. The defendants agreed to return the films with the prints within a few days after delivery. When the plaintiff first called and demanded the return of the films and prints, the defendant reported that it was unable to find them, and assured the plaintiff that they would make every effort to find them. A representative of the defendant told the plaintiff that the films had been printed in the laboratory, and the price marked upon them, and returned to the photographic department of the defendant's store ready for delivery. The defendant offered evidence to show that the films had been sent to the photographic laboratory, prints made, and the films returned to the photographic department. The defendant also showed the system in vogue in its store under which such articles were usually cared for, and that it pursued the same system which is in general use in large department stores in the city of New York. Upon this proof, the learned court below awarded judgment in favor of the defendant.

[1] We are of the opinion that upon this evidence plaintiff was entitled to recover. The law required the defendant to return all the property intact, or to explain its loss in some satisfactory way; but it did neither. Hasbrouck v. N. Y. C. & H. R. R. Co., 202 N. Y. 363, 374, 95 N. E. 808, 35 L. R. A. (N. S.) 537.

[2, 3] It is quite true, as urged by respondent, that the burden was upon the plaintiff to establish by a preponderance of evidence that the loss of the articles was due solely to the negligence of the defendant. Claflin v. Meyer, 75 N. Y. 260, 31 Am. Rep. 467. We think *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

that the plaintiff fully sustained this burden. Plaintiff proved the delivery of the films, and the failure of the defendant to return them upon demand. The failure to return the films was evidence of the failure on the part of the defendant to exercise ordinary care under the circumstances. The fact that the system in operation in defendant's store was similar to that in use in other large department stores in New York City was not sufficient to overcome the presumption of negligence which arose from the failure of the defendants to return the articles to the plaintiff. If the system adopted had been followed, the articles would have been delivered to the plaintiff. The failure so to deliver the goods is prima facie evidence of the fact that the defendant, through negligence, did not pursue the system that it adopted. The fact that the defendant, after the films were lost, made a careful and exhaustive search for them, is no evidence that the defendant exercised proper care of the films before they were lost. I do not see how it was possible for the plaintiff to prove more than he did, and the presumption which arose from the facts which he proved justified the inference that the defendant was negligent.

[4] Where the law presumes negligence, such a presumption takes the place of proof; and, while the presumption is not conclusive, it can only be overcome by evidence of a substantial and persuasive character. The evidence adduced by the defendant, while entitled to consideration and weight, was not, in our judgment, of such a character as to overcome the prima facie case established by the plaintiff.

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

(78 Misc. Rep. 145.)

MACKEY v. ROYAL BANK OF NEW YORK.

(Supreme Court, Appellate Term, First Department. November 8, 1912.) 1. Banks and Banking (§ 181*)—Usury—ACTION FOR Cumulative BenEFITS. Under Banking Law (Consol. Laws 1909, c. 2) § 74, which provides that, where a greater rate of interest than allowed by law has been paid, twice the amount of excessive interest may be recovered, where more than one payment of unlawful interest has been paid, cumulative penalties may be recovered in a single action.

[Ed. Note. For other cases, see Banks and Banking, Cent. Dig. §§ 686700; Dec. Dig. § 181.*]

2. COURTS (§ 189*)-MUNICIPAL COURT OF NEW YORK-JOINDER OF CAUSES OF ACTION.

By the express provisions of Code Civ. Proc. § 3347, subd. 4, section 484, relating to the joinder of causes of action in one complaint. is inapplicable to the Municipal Court of the City of New York.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*]

3. COURTS (§ 189*)-MUNICIPAL COURT OF NEW YORK-JOINDER OF CAUSES OF ACTION-PENALTIES.

Under Municipal Court Act (Laws 1902, c. 580) § 146, subd. 6, which provides that the plaintiff may unite in the same complaint two or more causes of action for penalties incurred under a statute, plaintiff *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 137 N.Y.S.-59

may join two or more causes of action under Banking Law (Consol. Laws 1909, c. 2) § 74, for recovery of excess of interest paid above the legal rate.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*]

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

Action by Joseph F. Mackey against the Royal Bank of New York. Judgment for plaintiff, and defendant appeals. Affirmed. See, also, 75 Misc. Rep. 630, 133 N. Y. Supp. 944.

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

L. E. Warren, of New York City, for appellant.

Thomas A. McGrath, of New York City, for respondent.

SEABURY, J. This action is brought under section 74 of chapter 10 of the Laws of 1909, being chapter 2 of the Banking Law (Consol. Laws 1909), to recover cumulative penalties. The defendant is a banking corporation organized under the laws of the state of New York. The complaint alleges that on 13 different occasions. between April 1, 1910, and March 31, 1911, the plaintiff borrowed divers sums of money, ranging from $25 up to $75; that the loans were usually for a period of one month, and that upon each occasion the plaintiff paid to the defendant more than 6 per cent. interest per annum. The complaint alleges the excess interest charged upon each loan as a separate cause of action. The facts alleged in the complaint having been proved, the court below awarded judgment in favor of the plaintiff. From that judgment the defendant appeals to this court, where it urges two grounds for the reversal of the judgment.

[1] The appellant's first contention is that cumulative penalties cannot properly be recovered under the statute. This question was once before before this court, and was disposed of adversely to the appellant's contention. Mackey v. Royal Bank of New York, 75 Misc. Rep. 630, 133 N. Y. Supp. 944. Section 74 of the Banking Law provides in part as follows:

"If a greater rate of interest has been paid, the person paying the same or his legal representatives may recover twice the amount of the interest thus paid from the bank or private or individual banker taking or re ceiving the same, if such action is brought within two years from the time the excess of interest is taken."

We think that the language of this statute makes it perfectly clear that the Legislature intended that the borrower should be permitted to recover twice the amount of the excess interest he had paid, within two years prior to the commencement of the action. This statute does not fix an arbitrary amount as a penalty which may be recovered in case the lender violates its provisions, but makes the amount which the borrower may recover dependent upon the sums exacted in each case. There is nothing in this statute which suggests the limitation

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

that the amount sued for must be twice the amount of the excess interest which was paid in one payment. Indeed, where, as in this case, there were several payments made, effect can only be given to the language of the statute by permitting a cumulative recovery. Anything less than this would not permit the amount of the excess interest to be recovered, where it was exacted at different times and in different payments. The cases of Sturgis v. Spofford, 45 N. Y. 447, Fisher v. N. Y. Central & Hudson River Railroad Co., 46 N. Y. 644, Cox v. Paul, 175 N. Y. 328, 67 N. E. 586, Jones v. Rochester Gas & Electric Co., 168 N. Y. 65, 60 N. E. 1044, and Griffin v. Interurban Street Railway Co., 179 N. Y. 438, 72 N. E. 513, all construe statutes radically different in their nature from the statute now under consideration. These authorities are, therefore, inapplicable

to the present case.

Section 74 of the Banking Law is very similar to section 5198 of the United States Revised Statutes (U. S. Comp. St. 1901, p. 3493), and that statute has been construed in Hintermister v. First National Bank of Chittenango, 64 N. Y. 212, where the court, through Allen, J., said:

*

"It is objected that but one penalty can be recovered in a single action. The authorities to which reference is had in support of this objection ** were decided upon the peculiar language of the acts giving the penalties. The act of Congress under which this action is brought regulates the recovery by the amount illegally received and taken, and does not give a fixed sum as an arbitrary penalty, and the party entitled to maintain the action is entitled to recover, within the terms of the act, twice the amount which he has paid for usury within two years prior to the commencement of the action, whether the amount has been paid in one or several payments."

[2, 3] The appellant's second contention is that the uniting of separate violations in one complaint as a separate cause of action is not permissible under section 484 of the Code of Civil Procedure. It is a sufficient answer to this contention to point out that section 484 of the Code of Civil Procedure is inapplicable to the Municipal Court of the City of New York. Code of Civil Procedure, § 3347, subd. 4. As a substitute for that section, subdivision 6 of section 146 of the Municipal Court Act (Laws 1902, c. 580) provides that:

"The plaintiff may unite in the same complaint two or more causes of action where they are brought to recover * for penalties incurred under a statute," etc.

The language of this section covers a cause of action arising under section 74 of the Banking Law. It follows that each violation of the statute gives a separate cause of action, and that these separate causes of action may properly be united in the same complaint, and an action brought in the Municipal Court.

Judgment affirmed, with costs. All concur.

(78 Misc. Rep. 179.)

INTERNATIONAL TRUST CO. v. CAROLINE.

(Supreme Court, Appellate Term, First Department. November 8, 1912.)

1. BILLS AND NOTES (§ 123*)-PERSONS LIABLE.

A note signed, "C. Leather Company, by H. C., Prop.," did not impose an individual liability upon H. C.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 260267, 1393; Dec. Dig. § 123.*]

2. ASSIGNMENTS FOR BENEFIT OF CREDITORS (§ 326*)-RELEASE BY CREDITORS -CONSTRUCTION OF PLEADING.

The answer, in an action on notes signed by a leather company, by C., its proprietor, and indorsed by defendant, alleged that the company was a copartnership, in which defendant was a partner, and that after the execution of the notes the copartnership executed an assignment of assets to trustees for the benefit of creditors upon condition that all the creditors, becoming parties thereto, take whatever dividends accrued in full payment of all claims "against the defendant, his copartners, or any of them," and that plaintiff took such dividend, "which said sum the plaintiff accepted as a full and final payment of any and all claims which he then had against the C. Leather Company, of which the defendant was a copartner." Held, that the answer alleged that defendant and his copartner were individually discharged by the acceptance of the dividend by plaintiff and his copartners, as well as the copartnership itself; the subsequent pleading of the legal conclusion that the partnership was discharged not affecting the other allegations.

[Ed. Note. For other cases, see Assignments for Benefit of Creditors, Cent. Dig. §§ 950-957; Dec. Dig. § 326.*]

Appeal from City Court of New York, Trial Term.

Action by the International Trust Company against Israel Caroline. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

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

Goldstein & Goldstein, of New York City (David Goldstein, of New York City, of counsel), for appellant.

Louis W. Severy, of New York City, for respondent.

BIJUR, J. The complaint sets out that certain notes were made in favor of plaintiff by the Caroline Leather Company and signed, "Caroline Leather Co., by Harry Caroline, Prop.," and that the defendant indorsed the same. As a separate defense the defendant sets up that the Caroline Leather Company was a copartnership, in which he was a partner; that, subsequent to the making of the notes in suit, the copartnership executed an assignment of certain assets to trustees for the benefit of creditors, upon the condition that all the creditors, who became parties thereto, took whatever dividends accrued in full payment of all claims "against the defendant and his copartners, or any of them"; that the plaintiff took such dividend, "which said sum the plaintiff accepted as a full and final payment of any and all claims which he then had against the Caroline Leather Company, of which the defendant was a copartner."

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