Opinion
October 29, 1992
Appeal from the Supreme Court, New York County (Harold Baer, Jr., J.).
Plaintiff proved at trial that he pledged $16,200 in jewelry to defendant for a loan of $1,800, and that the goods pledged were not returned. The burden then shifted to defendant, to prove by a preponderance of the evidence, that it was not at fault (see, Art Masters Assocs. v United Parcel Serv., 77 N.Y.2d 200, 210-212 [Titone, J., dissenting]). Defendant attempted to meet that burden by seeking to prove that the goods pledged were stolen from defendant's former employees in a gunpoint robbery. However, there was an absence of evidence in admissible form to show how the goods pledged were lost.
A term of the pawn agreement, printed in English on the pawn ticket and posted on two signs, limiting liability in this case to twice the amount of the loan ($3,600), is inapplicable. A contractual limitation upon liability is of no force or effect in an action where conversion is shown (I.C.C. Metals v Municipal Warehouse Co., 50 N.Y.2d 657).
We have considered defendant's remaining arguments, and find them to be without merit.
Concur — Sullivan, J.P., Rosenberger, Wallach and Ross, JJ.