Oakes v. Sloane — 135 A.D. 354

Majority

p. 354

Adelene E. S. Oakes, Respondent, v. W. & J. Sloane, Appellant.

First Department,

December 30, 1909.

Headnote

Bailment — husband and wife — title to property — evidence.

Where household goods are taken for storage from a house where a man and his wife are living together, at the request of the' husband, and are subsequently redelivered to him, cleár and convincing proof is required to sustain a verdict in favor of the wife against the bailee for failure to deliver the-property to her upon demand.

Appeal by the defendant, W. & J. Sloane, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the County of Hew York on the 3d day of February, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes. - v ■

Selden.Bacon of counsel [McGuire, Horner dk Smith, attorneys], for the appellant.

I T. Flaito, for the respondent.

In September, 1899, the plaintiff and her husband, Francis J. Oakes, were living together at 242 West Seventy-third street in the city of Hew Tork, and from said house there were delivered to the defendant for storage certain draperies, hangings and curtains which had been in use in said house.

In April, 1904, upon the demand of Francis J. Oakes and upon payment of the storage and insurance charges, the defendant delivered said goods to him. On the 1st of June, 1907, this action was commenced by the plaintiff against the defendant, alleging a delivery to them in 1901 of said goods by her, a' failure to redeliver to her upon demand, and claiming $8,000 damages. Subsequent to the original delivery the plaintiff and her husband separated and are not now living together.

' Upon the trial plaintiff undertook to show that she was the owner cf.ithe goods; that she delivered them to the defendant, and the value thereof. She recovered a verdict of $2,328.43, to -which was added interest, making a total of $3,453.43.

We think that the judgment cannot stand as the plaintiff did not sustain the burden of establishing any of the necessary elements of her case, title, delivery or value. When household goods are taken for storage from a house where a man - and his wife are living together, at the request of the husband, and are subsequently delivered to him, clear and convincing proof is required to sustain a verdict in favor of the wife against the bailee.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.'

Present —' Ingeaham, McLaughlin, Claeke, Houghton and Scott, JJ.

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