Welensky v. Breslin

The judgment was directed upon the pleadings and upon plaintiff’s opening. It appears that the plaintiff, being in embarrassed circumstances, made an assignment for the benefit of creditors to the defendant. The defendant took possession of the store in which the plaintiff was located and of the goods therein. He locked the store and made the same reasonably secure. Thereafter the landlord instituted dispossess proceedings for the non-payment of rent that had accrued prior to the assignment. It does not appear that personal service of the notice of these proceedings was made either upon the plaintiff or defendant. Motice, however, was posted upon the door of ' the building upon the premises. In the proceedings the mar*535shal broke through the window of the store and took the goods of the plaintiff and dumped them into the street, from which place some of the goods were stolen. Meantime bankruptcy proceedings were started, and plaintiff finally made an agreement with his creditors, which was approved by the bankruptcy court, by which court an order was made that the defendant should turn over the goods in his possession to the plaintiff. These goods were turned over; the goods that had been stolen, however, were not accounted for, and this action is brought by the plaintiff to recover for his loss of the goods that were stolen, claiming that it was caused by the defendant’s negligence.

It appears that at the time of the assignment the defendant had notice of the fact that rent was unpaid. He had every reason to believe, therefore, that summary proceedings would be started and that he would be evicted from the premises. His duty to his assignor was to use reasonable care in the preservation of these goods. Notwithstanding the probability that he would be turned out of these premises, he made no provision for storing the goods elsewhere, nor did he give any notice to the landlord of his rights in order that he might have notice of any dispossess proceedings that were started. His failure in some way to protect these goods against their probable hazard might be held.by the jury to constitute negligence in caring for this property.

The trial court was in error, therefore, in directing a verdict for the defendant, and the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Clarke, P. J., Laughlin, Dowling and Page, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.