Burns & Barclay Co. v. Metropolitan Savings Bank

19 Misc. 707

• Court: City of New York Municipal Court
• Decided: February 15, 1897
• Status: Published

Opinion

Eitzsimons, J.

The plaintiff rented to the defendant, for the period of five years, 300 banks, which were to be distributed among customers of the defendant and were to be returned to the plaintiff upon the expiration of the contract.

In default of such redelivery, the defendant was to pay the plaintiff $3 for each bank not returned.

Upon the expiration of said period" of time, the plaintiff demanded a return of the banks, which the defendant failed to return until April, 1895, being five years and three months after the delivery of such banks to it.

The defendant in its answer stated, “ That within a reasonable time after the expiration of said term of five years they returned said banks to the plaintiff.”

This allegation the defendant was required to'prove, and its failure so to do would entitle the plaintiff to a verdict.

The record'shows that not alone did the defendant fail to prove that issue, but also failed to establish .the other issues raised by.the answer.

Upon thé close of the plaintiff’s case, defendant also rested with-, ■out submitting any' evidence in its behalf., '■

Under, such circumstances and because of plaintiff’s evidence the justice was right in directing a verdict in' favor of the plaintiff.

Judgment affirmed, with costs.

McCarthy, J., concurs.