Frederick A. Stokes Co. v. Carell

138 N.Y.S. 536

Opinion

PER CURIAM.

The action is based upon negligence. Defendant’s original possession was lawful, because the bankrupts were bailees of the plates. There was no adverse claim to the possession of the property until after it had been removed to the warehouse from the premises of the bankrupts. Such removal was within defendant’s powers as receiver, and was a lawful official act. Whatever damage or loss occurred as an incident to such removal and storage was not from any personal act of defendant, but was. due to the negligence of his servants, in whose selection there was no proof defendant was negligent. Under such circumstances, defendant is not personally liable. Donovan v. McAlpin, 85 N. Y. 185, 39 Am. Rep. 649; Cardot v. Barney, 63 N. Y. 281, 20 Am. Rep. 533; Sager Mfg. Co. v. Smith, 45 App. Div. 358, 60 N. Y. Supp. 849; Keating v. Stevenson, 21 App. Div. 604, 47 N. Y. Supp. 847.

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