Goldseiger v. Balik

It appears from the evidence, assuming that all disputed questions of fact are resolved in favor of the plaintiff, that in November, 1910, the plaintiff ordered certain glass from the defendant. Subsequently the defendant herein sued this plaintiff for the agreed price of $43, and recovered judgment for that amount. The plaintiff herein did not pay this judgment till August, 1913, and he then demanded delivery of the glass. This defendant then returned one piece worth $5, and showed that the remainder of the glass was broken, together with about $400 of his own glass, while he was moving his place of business, before this plaintiff demanded the glass. Upon these facts the plaintiff has recovered judgment for the sum of $33. _

_ It is not disputed that when the defendant in 1911 recovered judgment for the agreed price of the glass, it was upon the theory that the glass then belonged .to the plaintiff. The defendant no longer had any interest in the glass, an(l it was held at the risk of the plaintiff. The mere fact that the plaintiff did not choose at that time to take the glass, as he-was in duty bound to do, could impose no duty upon the defendant to care for this glass. If the defendant did retain the glass instead of abandoning it, he certainly thereby incurred no greater duty than that of gratuitous bailee.

In the very case relied upon by the plaintiff to sustain the recovery, Ouderkirk v. Central Nat. Bank, 119 N. Y. 263, 23 N. E. 875, the court said:

“In the case of gratuitous bailments, however, the bailee is liable only when chargeable with gross neglect.”

*149While, of course, even in the case of a gratuitous bailment, the bailee who fails to deliver the goods upon demand has the burden of presenting evidence to explain his failure, I think that in this case the bailee has fully met this burden. Where the object of the bailment is so breakable a commodity a"s glass, and is unreasonably left in the bailee’s possession for over two years, and during that time the bailee moves his place of business, I do not think that the bailee can possibly be charged with gross negligence, merely by reason of the breakage during the removal.

In my opinion the judgment should therefore be reversed, with costs, and the complaint dismissed, with costs. All concur.