Carll v. Goldberg — 59 Misc. 172

Majority

p. 172

David Carll, Respondent, v. Joseph M. Goldberg, Appellant.

(Supreme Court, Appellate Term,

May, 1908.)

Headnote

Damages — Particular contracts and relations — Liability of bailees, etc.

Where, after the time agreed upon for the return of an overcoat delivered to defendant to be cleaned and repaired, the coat was stolen without negligence on the part of defendant, the plaintiff, in an action for breach of the contract, is entitled to recover the value of the coat.

p. 173

Where the coat, which originally cost forty-five dollars, liad been worn one or two years and was in fairly good condition when delivered to defendant, a judgment in plaintiff’s favor for forty dollars will be reversed, unless he stipulates to take thirty dollars and costs in the trial court, in which event the judgment, as modified, will be affirmed.

Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of ¡New York, third district, borough of Manhattan.

Tobias A. Keppler, for appellant.

Robert F. Randall, for respondent.

Plaintiff delivered, on ¡November 30, 1907, an overcoat to defendant, a tailor, to be cleaned and repaired, and to be returned to plaintiff at six p. m., on December 2, 1907. It was not returned; and, at midnight on said December 2, 1907, the defendant’s place was entered by burglars and said coat was stolen. Plaintiff sued for “ breach of contract ” and recovered a judgment for forty dollars, the supposed value of the coat, together with costs. Defendant appeals. There is no evidence of negligence on defendant’s part so far as the burglary is concerned. The defendant, however, was guilty of a breach of contract, in failing to return the coat to plaintiff at six p. m.; and the resulting damage of such breach of contract was the loss of the overcoat. Defendant, in failing to deliver the coat at the time specified, ran his risk of something happening to it, and must bear the consequences. The amount of the damage allowed, however, was excessive, as the coat, which originally cost forty-five dollars, was one that had been worn for one or two years, plaintiff does not know which, although it seems to have been in fairly good condition when delivered to defendant, according to plaintiff’s evidence, which the court had a right to be7 Ave. See Young v. Leary, 135 ¡N. Y. 569-577; Cohen v. Koshkowitz, 17 Mise. Rep. 389.

The judgment will be a new with costs to appellant to abide the event, unless plaintiff

p. 174

stipulates to reduce the amount of the damages from forty dollars to thirty dollars, with appropriate costs in the court below; in which ease the judgment, as modified, will be affirmed, without costs of appeal to either party.

Present: Gildersleeve, Giegerich and Greenbaum, JJ.

Judgment reversed and new trial ordered, unless plaintiff stipulates to reduce the amount of the damages, in which case judgment modified and as modified affirmed, without costs of appeal to either party.