Hyperlawhypertext legal database New System Napkin, Towel Supply & Steam Laundry Co. v. Burnham 156 N.Y.S. 596

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New System Napkin, Towel Supply & Steam Laundry Co. v. Burnham

156 N.Y.S. 596 Court Argued November term, 1915, before LEHMAN, BIJUR, and FINCH, JJ. Decision date 1916-01-07 English

Delivered by LEHMAN, J.

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p. 596
NEW SYSTEM NAPKIN, TOWEL SUPPLY & STEAM LAUNDRY CO. v. BURNHAM.
(Supreme Court, Appellate Term, First Department.
January 7, 1916.)

Headnote

Bailment @=31—Action Against Bailee—Evidence—Finding.
In an action for failure to return certain towels, which, plaintiff had delivered to defendant, evidence held not to justify the verdict for plaintiff for the amount claimed.
[Ed. Note.'—-For other cases, see Bailment, Cent. Dig. §§ 12A-131; Dec. Dig. @=31.]
<te>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by the New System Napkin, Towel Supply & Steam Laundry Company against Olive Burnham. Judgment in favor of plaintiff, and defendant appeals. Reversed, and new trial ordered, unless plaintiff stipulates to reduce the amount of the judgment, in which case, judgment modified and affirmed.
Argued November term, 1915, before LEHMAN, BIJUR, and FINCH, JJ.
Frank B. Vermilya, of New York City, for appellant.
Michael Seinfeld, of New York City, for respondent.

The plaintiff delivered to defendant 1,721 towels. Its driver testified that he received back 396 towels on September 13, 1914, and 300 on September .18, 1914, and that the defendant has failed to return 1,025 towels. The value of the towels was 5% cents per towel, and the trial justice consequently gave judgment for the sum of $55.17.

Upon cross-examination the plaintiff’s driver testified that on October 2d the defendant’s housekeeper returned to him an additional 377 towels, and that, though he demanded the full number of towels which he had delivered to the defendant, he had signed a receipt for the 377 towels which is in evidence. The plaintiff claims that it is possible to read into the evidence that the driver did not accept the towels offered to him by defendant’s housekeeper. In view of the dispute as to the number she ought to have returned, I can find nothing in the testimony that would justify such a finding.

It follows that the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event, unless the plaintiff will stipulate to reduce the judgment in the sum of $19.53, with appropriate costs, and in that event the judgment, as modified, should be affirmed, without costs to either party. All concur.