Opinion
April, 1900.
William H. Chorosh, for appellant.
Lockwood Hill (Joseph E. Russell, Jr., of counsel), for respondent.
There was sufficient evidence adduced upon the trial to warrant the justice in finding, as is assumed from the judgment, that the wheels were transported by the defendant, under a special contract, at the plaintiff's risk of damage.
The burden was therefore upon the plaintiff to show facts taking the case out of the operation of the exemption clause. Whitworth v. Erie R. Co., 87 N.Y. 413, 419; Canfield v. Baltimore Ohio R.R. Co., 93 id. 532. This he wholly failed to do, and, under the circumstances, we have no alternative other than to affirm the judgment.
Present: BEEKMAN, P.J., GIEGERICH and O'GORMAN, JJ.
Judgment affirmed, with costs.