Kleiner v. Cohn — 75 Misc. 116

Majority

p. 116

Michael Kleiner, Appellant, v. Joseph Cohn and Arnold Cohn, Respondents.

(Supreme Court, Appellate Term,

January, 1912.)

Headnote

Negligence—Acts or omissions constituting negligence — Contributory negligence.

Leaving a horse and wagon in front of a factory unattended for three hours while the person who hired them is at work in the factory is such want of care as will render the hirer liable to the owner in case they are stolen, although the former or his employee looked every ten or fifteen minutes from a window on the fifth floor to see if the horse and wagon were still there.

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

Joseph Kleiner (Raymond Y. Ingersoll, of counsel), for appellant.

Julian J. Raphael (Abraham Oberstein, of counsel), for respondents.

The defendants hired a horse and wagon from the plaintiff. A thief stole the horse and wagon while they were left unattended in front of the defendants’ place of business. The defendants are liable in this action for the value of the horse and wagon left in their custody, if they failed to exercise reasonable care to guard against loss.

. Accepting the defendants’ story as true,. it appears that the wagon was brought to their place of business at eight o’clock in the morning. From eight until eleven the driver and his helper worked in the defendants’' factory. During that entire time there was no watch kept over the wagon, except that every ten or fifteen minutes .the defendant or one of his workmen would look out from the fifth story window to see whether the wagon was still there. It seems to me that the defendants exercised absolutely no care to safeguard the plaintiff’s property. The mere fact that they looked every ten or fifteen minutes from a window on the fifth floor could

p. 117

hardly be calculated to deter a thief from jumping on the wagon and driving off. The horse and wagon were unattended in the street for at least three hours, a constant temptation to a thief to take them. Under these circumstances, I think that no finding that the defendants exercised reasonable care can be sustained.

Seabury and Page, JJ., concur.

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