Bryant v. Auchmuty

Appellate Terms of the Supreme Court of New York

Bryant v. Auchmuty

129 N.Y.S. 471

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 18, 1911

StatusPublished

Cited by3 cases

This text of 129 N.Y.S. 471 (Bryant v. Auchmuty) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bryant v. Auchmuty, 129 N.Y.S. 471 (N.Y. Ct. App. 1911).

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Opinion

SEABURY, J.

The defendant is the owner of an apartment house in which the plaintiff’s husband hired an apartment. There were four storerooms in the house, which were used in common by all the tenants. In May, 1907, the plaintiff delivered a trunk to the agent of the defendant, and the trunk was placed in one of the storerooms. When the plaintiff asked for her trunk on September 27, 1910, it could not be found.

The lease contained the following clause:

“The landlord shall not be responsible to any tenant for any loss of property from said leased premises, nor damage done to furniture or effects belonging to any tenant, however occurring.”

The plaintiff sued to recover the value of the trunk and its contents, and was nonsuited.

[1] Apart from the clause quoted above, the relation existing between the plaintiff and defendant as to the plaintiff’s trunk was that of bailor and bailee. Proof by the plaintiff that she delivered the trunk to the defendant, and that the latter failed to return it upon demand, because the trunk could not be found, was sufficient to establish a prima facie case in favor of the plaintiff. Steward v. Stone, 127 N. [473]*473Y. 500, 28 N. E. 595, 14 L. R A. 215; Ouderkirk v. C. N. Bank, 119 N. Y. 263, 23 N. E. 875.

[2] The clause above quoted was contained in a lease between the plaintiff’s husband and the defendant, to which the plaintiff was not a party. So far as the facts of this case are concerned, we do not think that the clause is of any significance.

[3] Even if the clause had been contained in a lease to which the plaintiff was a party, we think that it does not cover such a case as the present. The trunk was not lost while upon the “leased premises,” but while it was in the defendant’s custody in the storeroom. When the defendant accepted the plaintiff’s trunk, she became at least the bailee under a gratuitous bailment, and as such a prima facie case against her was established. Ouderkirk v. C. N. Bank, supra.

[4] We think that the court below erred in excluding proof of the conversation- between the plaintiff and the defendant’s agent, showing the agreement under which the trunk is alleged to have been received by the defendant.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur. . .

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SEABURY, J.

The defendant is the owner of an apartment house in which the plaintiff’s husband hired an apartment. There were four storerooms in the house, which were used in common by all the tenants. In May, 1907, the plaintiff delivered a trunk to the agent of the defendant, and the trunk was placed in one of the storerooms. When the plaintiff asked for her trunk on September 27, 1910, it could not be found.

The lease contained the following clause:

“The landlord shall not be responsible to any tenant for any loss of property from said leased premises, nor damage done to furniture or effects belonging to any tenant, however occurring.”

The plaintiff sued to recover the value of the trunk and its contents, and was nonsuited.

[1] Apart from the clause quoted above, the relation existing between the plaintiff and defendant as to the plaintiff’s trunk was that of bailor and bailee. Proof by the plaintiff that she delivered the trunk to the defendant, and that the latter failed to return it upon demand, because the trunk could not be found, was sufficient to establish a prima facie case in favor of the plaintiff. Steward v. Stone, 127 N. [473]*473Y. 500, 28 N. E. 595, 14 L. R A. 215; Ouderkirk v. C. N. Bank, 119 N. Y. 263, 23 N. E. 875.

[2] The clause above quoted was contained in a lease between the plaintiff’s husband and the defendant, to which the plaintiff was not a party. So far as the facts of this case are concerned, we do not think that the clause is of any significance.

[3] Even if the clause had been contained in a lease to which the plaintiff was a party, we think that it does not cover such a case as the present. The trunk was not lost while upon the “leased premises,” but while it was in the defendant’s custody in the storeroom. When the defendant accepted the plaintiff’s trunk, she became at least the bailee under a gratuitous bailment, and as such a prima facie case against her was established. Ouderkirk v. C. N. Bank, supra.

[4] We think that the court below erred in excluding proof of the conversation- between the plaintiff and the defendant’s agent, showing the agreement under which the trunk is alleged to have been received by the defendant.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur. . .

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129 N.Y.S. 471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryant-v-auchmuty-nyappterm-1911.

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