National Cash Register Co. v. Caillias — 84 N.Y.S. 166

Majority

p. 166

NATIONAL CASH REGISTER CO. v. CAILLIAS.

(Supreme Court, Appellate Term.

June 22, 1903.)

Headnote

1. Bailment—Failure to Return Property—Liability.

Where defendant, by written agreement, promises to hold himself responsible in a certain sum for the return of a register, his liability on default is the amount fixed in the agreement.

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

p. 167

Action by the National Cash Register Company against Frederic C. Caillias. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

Crane & Baer, for appellant.

Perkins & Butler, for respondent.

The defendant hired from the plaintiff a cash register for the summer season of 1902, from June 26 to September 26, 1902, at Coney Island, and agreed in writing to hold himself responsible to the plaintiff in the sum of $100 for its safe custody, and for its safe and peaceable return. He did not return it, and when its return was demanded from him he said he could not, as he did not know where it was. As he testified, he had left Coney Island on September 5th. Then the cash register was in the kitchen. Later it could not be found. Just when it disappeared from the premises was not shown. Some testimony was indulgently received upon abortive attempts to vary the written evidence of the defendant’s obligation, and to limit his liability by notice. It was all incompetent. As the learned justice held, however, the liability of the defendant was in the amount fixed by him in his express agreement of bailment.

Judgment affirmed, with costs to the respondent. All concur.