Dunham v. City of New York

264 A.D. 732, 34 N.Y.S.2d 289, 1942 N.Y. App. Div. LEXIS 4419

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 20, 1942
• Status: Published

Opinion

Action brought in the Municipal Court of the City of New York, to recover damages for the loss of an automobile parked by plaintiff on a parking field operated by the defendant municipality at the New York World’s Fair. At the trial the complaint was dismissed at the close of plaintiff’s proofs. From the judgment entered in favor of defendant, plaintiff appealed to the Appellate Term, Second Department, which thereafter reversed that judgment and granted a new trial. From that order defendant appealed, by permission [see 262 App. Div. 962], to this court and stipulated that judgment absolute be rendered against it, in event of affirmance. Order of the Appellate Term affirmed, with costs, and judgment absolute rendered in favor of the plaintiff against the defendant, pursuant to stipulation. (Galowitz v. Magner, 208 App. Div. 6; Osborn v. Cline, 263 N. Y. 434, 437.) This ruling is not in conflict with that in Chamberlain v. Station Parking Service, Inc. (251 App. Div. 825) when the latter case is considered in the light of its peculiar facts. Lazansky, P. J., Hagarty and Taylor, JJ., concur; Carswell, J., dissents and votes to reverse the order of the Appellate Term and to affirm the judgment of the Municipal Court on the authority of Chamberlain v. Station Parking Service, Inc. (251 App. Div. 825); Adel, J., dissents and votes to reverse the order of the Appellate Term and to affirm the judgment of the Municipal Court, with the following memorandum: The proof established that the plaintiff simply hired a place to put his car and did not turn its possession over to the care and custody of the defendant. Parking the ear in the lot, securely locked, does not constitute turning over its possession so that a finding may be made that the transaction was a bailment.