Opinion
April 26, 1928.
Emmet, Marvin Martin [ George W. Martin of counsel], for motion.
Louis H. Robinson, in opposition.
While the dismissal of the complaint seems warranted by the opinion in Claflin v. Meyer ( 75 N.Y. 260), it was subsequently held in Ouderkirk v. Central National Bank (119 id. 263) that the burden of showing the circumstances of the loss of the property rests upon the bailee, and unless the evidence shows the exercise of due care by him according to the nature of the bailment he will be held responsible for the breach of his contract to return the property bailed; and in Stewart v. Stone ( 127 N.Y. 500) that the prima facie case made out by failure to return the property bailed on demand may be overcome when it is made to appear that the loss was occasioned by some misfortune or accident not within the control of the bailee. (See, also, Greenberg v. Mermelstein, 188 N.Y.S. 250; Hobbie v. Ryan, 130 Misc. 221.)
It follows that the mere concession that the automobile was stolen from defendant's garage did not destroy plaintiff's prima facie case, and it was error to dismiss the complaint.
Motion for reargument granted, order of this court dated March 13, 1928 vacated, judgment reversed and a new trial ordered, with costs to appellant to abide the event. Motion for leave to appeal to the Appellate Division dismissed.
All concur; present, LYDON, LEVY and CRAIN, JJ.