Rudolph v. McCaldin — 41 N.Y. St. Rep. 467

Majority

p. 467

Mary J. Rudolph, Resp’t, v. James McCaldin et al., App’lts.

( City Court of New York, General Term,

Filed December 17, 1891.)

Headnote

Negligence—Loss of vessel.

Plaintiff’s evidence tended to show that she chartered a scow to defendants through their manager; that it was lost while being towed in a gale by a small boy in a row boat, who had been employed by defendants for that purpose, and that one of the defendants had admitted that it was lost by their fault and offered to replace it by another. Defendants’ manager denied that he chartered the scow, but the testimony as to the admission was not denied. The case was submitted under a proper charge. Held, that a verdict for plaintiff would not be disturbed.

Appeal from judgment entered on verdict of jury in favor of plaintiff.

Stewart & Macklin, for resp’t; Arch. L. Sessions, for app’lts.

The record does not disclose any objection or exception whatever except to the denial of the motion, on the minutes, for a new trial, and this appeal is from the order entered thereon and the judgment. The plaintiff’s evidence shows that she chartered a scow to defendants ; that the same has never been returned to her; that it was lost in the New York bay while being towed by a very small boy in a row boat; that this boy was employed by defendants to so tow the scow; that the person "through whom the scow was so chartered was Mr. Donegan, the

p. 468

manager of defendants. Plaintiff’s son testified that Donegan had so chartered it, which, however, he denied, and the son further testified that after the boy had started out to so tow the scow in a heavy gale he had succeeded in saving himself but the scow was; lost, and that thereafter one of defendants (copartners) admitted that the scow was lost by their fault and offered to replace it by giving his mother another one, which she refused, and this was not contradicted by defendants.

The case was carefully submitted to the jury, who were instructed to first determine whether the scow had been chartered to defendants, for whom they must find a verdict if they concluded, that it had not been, but if they found that it had been, then they must ascertain whether its loss was caused by the careless and negligent management of the same by defendants, and if so, then what was its value. The verdict returned for $100 for plaintiff should not be disturbed and is affirmed, with costs.

McCarthy, J., concurs.