New York Court of Appeals, 1983

Voorhis v. Consolidated Rail Corp.

New York Court of Appeals · Decided November 22, 1983

60 N.Y.2d 878; 458 N.E.2d 823; 470 N.Y.S.2d 364; 1983 N.Y. LEXIS 3536

Cases that cite this one

13 later published cases cite this decision.

Isik Jewelry v. Mars Media, Inc. (District Court, E.D. New York 2005)
Short v. United States Postal Service (District Court, S.D. New York 1995)
United States v. Ruben Perea (2d Cir. 1993)
Sun Yau Ko v. Lincoln Savings Bank (Appellate Division of the Supreme Court of New York 1984)
Reed v. Cornell University (Appellate Division of the Supreme Court of New York 2016)
New York Central Mutual Insurance v. Medical Diagnostic Imaging, PLLC (City of New York Municipal Court 2011)
Ramirez v. City of White Plains (Appellate Division of the Supreme Court of New York 2006)
Waterton v. Linden Motor Inc. (Civil Court of the City of New York 2006)
O'Connor v. State (Appellate Division of the Supreme Court of New York 2002)
Fada Industries, Inc. v. Falchi Building Co. (New York Supreme Court 2001)
Roth v. Black Star Publishing Co. (Appellate Division of the Supreme Court of New York 1997)
Bank of New York v. Colnaghi USA Ltd. (Appellate Division of the Supreme Court of New York 1995)
Pavesi v. Carollo (Appellate Division of the Supreme Court of New York 1984)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Whether the usher, Pereira, was acting within the scope of his employment in agreeing to watch plaintiff’s suitcase, whether he did so agree and whether defendant through Pereira was guilty of gross negligence, were, under the testimony presented, questions of fact for the jury.

The bailment, if found by the jury, would constitute defendant only a gratuitous bailee, liable only for gross negligence. But even as to a gratuitous bailee the failure to return the object bailed establishes a prima facie case of gross negligence, requiring the bailee to come forward with an explanation (Dalton v Hamilton Hotel Operating Co., 242 NY 481, 488; Hasbrouck v New York Cent. & Hudson Riv. R.R. Co., 202 NY 363, 374). Defendant presented no testimony, but there was evidence concerning what happened to plaintiff’s suitcase in the form of the deposition of Pereira, read by plaintiff, and the report of defendant’s Police Officer Lennon, offered by defendant. In his deposition Pereira denied any knowledge of what happened to the suitcase, and Lennon’s report only indicates that Pereira stated “that he had been called away during the course of watching same and when he returned said property was found missing.”

From that evidence the jury could, but was not required to, infer that the suitcase had been stolen and that Pereira had been guilty of gross negligence in leaving the suitcase unattended. The burden of proof, and the burden of going *880forward, once a theft has been established, rests upon plaintiff bailor, however (Castorina v Rosen, 290 NY 445; Claflin v Meyer, 75 NY 260; Mays, Inc. v Hertz Corp., 15 AD2d 105; Fidelity & Guar. Ins. Corp. v Ballon, 280 App Div 373). It was not error, therefore, to deny plaintiff’s request for a directed verdict on the issue of gross negligence.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.