Creager v. McGowan — 104 N.Y.S. 416

Majority

p. 416

CREAGER et al. v. McGOWAN.

(Supreme Court, Appellate Term.

May 16, 1907.)

Headnote

Carriers—Carriage oe Goods—Loss op Goods—Negligence—Evidence.

A carrier and his driver, delivering boxes of goods to plaintiff, testified that the boxes were in good condition when delivered. The receipt' signed for them showed that they were in good order. They remained in plaintiff’s custody after delivery for a week before being unpacked, and they were placed in a basement, where they could have been tampered with by strangers, and remained there for two weeks. Held, that plaintiff failed to show that goods were missing when the boxes were delivered to him.

Appeal from Municipal Court, Borough of Manhattan, Eleventh District.

Action by William P. Creager and another against John McGowan, doing business as the Excelsior Transfer Company. From a judgment for plaintiffs, defendant appeals.

Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and SEABURY and BRADY, JJ.

Edward W. Searing, for appellant.

Charles F. Gehrmann, for respondents.

The plaintiffs failed to sustain the burden of proof. Defendant and his driver swear that the boxes were in good condition when delivered at the plaintiffs’ apartment house. The receipt signed for them by the superintendent shows that they were in good order. They were placed in a basement, where they could have been tampered with by strangers, and remained there for two weeks. They remained in the custody of plaintiffs after delivery for a week before being urn-packed. The plaintiffs have not shown by a fair preponderance of evidence that the goods were missing from the boxes when the defendant delivered them at No. 301 St. Nicholas avenue.

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