Cifford v. Universal Storage Warehouse & Express Co.

52 Misc. 595, 102 N.Y.S. 460

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1907
• Status: Published

Opinion

MacLean, J.

Having lost certain goods stored in the defendant’s warehouse, which with its contents was destroyed by fire, the plaintiff brought this action for two causes: (1) The negligence in failing to take proper care; and (2) deceit in falsely and fraudulently representing the warehouse to be a fireproof building, whereby the plaintiff, the same believing, was induced to store in said warehouse his goods and effects. The complaint was dismissed as to both causes of action. Although in support of the first the proof was meagre, indeed, there was evidence, from the situation found by the firemen in breaking in the doors and the testimony that articles so readily combustible as old rags, burlaps and excelsior were stored in an old van near the elevator shaft, from which might have been inferred lack on the part of the bailee of the care which persons of ordinary prudence exercise in the management of their own property. Upon the second cause of action there was sufficient to present an issue for consideration of the jury under the doctrine laid down in Hickey v. Morrell, 102 N. Y. 454, and followed since; for, as the plaintiff testified, with some corroboration by the defendant’s president, upon his application less than three weeks before the fire for storage at the company’s office he was referred by the secretary to one Altschul, a stock clerk and foreman, who, upon inquiry by the plaintiff as to the condition of the building, said: “ It is an absolutely fireproof building.” The judgment should be reversed.

Ctldersleeve and Amend, JJ., concur.

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