Kleiner v. Cohn — 132 N.Y.S. 779

Majority

p. 779

KLEINER v. COHN et al.

(Supreme Court, Appellate Term.

January 5, 1912.)

Headnote

1. Bailment (§ 14^[1] ) — Liability of Bailee.

A bailee of a horse and wagon for hire is liable for the value thereof, if he fails to exercise reasonable care to protect it from theft.

[Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 45-56; Dec. Dig. § 14.^[1] ]

2. Bailment (§ 14^[1] ) — Loss of Bailed Propebty — Negligence by Bailee.

Defendants hired a horse and wagon from plaintiff, which was taken to their place of business at 8 o’clock a. m., and from 8 until 11 o’clock the driver worked in defendants’ factory, during which time no watch was kept over the wagon, except that every 10 or 15 minutes one of defendants’ workmen would look from the fifth-story window to see if the horse and wagqn was still there. The horse and wagon was stolen. Hold, that defendants were negligent in not keeping a better watch to protect the horse and wagon.

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

Action by Michael Kleiner against Joseph Cohn and another. From a judgment for defendants, plaintiff appeals. Reversed, and new trial ordered.

Argued before SEABURY, LEHMAN, and PAGE, JJ.

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

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

^[1] The defendants hired a horse and wagon from the plaintiff. A thief stole the horse and wagon while it was left unattended in front of 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.

[2] Accepting the defendants’ story as true, it appears that the wagon was brought to their place of business at 8 o’clock in the morning. From 8 until 11 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 10 or 15 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 10 or 15 minutes from a window on the fifth floor could hardly be calculated to deter a thief from jumping on the wagon and driving off. The horse and

p. 780

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.

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