Kennedy v. Fulton & Flatbush Storage & Warehouse Co.

138 N.Y.S. 200

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 15, 1912
• Status: Published

Opinion

PER CURIAM.

[1, 2] While there may be force in the plaintiff’s, contention that the defendant, if it had called its third employé on the moving van, could have more fully explained the claim of nondelivery, we think the plaintiff’s own case on the question of nondelivery inherently weak, because of her failure to produce as a witness-her maid, who received the trunks on their delivery, and who, if called, ought to have been able to testify to their condition, and whether or not the locks were tampered with and the contents abstracted. The appellant did not see the trunks at all upon delivery, nor until the morning following, some 12 hours thereafter, and with no explanation of her maid’s movements in the interim, it was rightly within the province of the learned trial judge to find as a matter of fact that the plaintiff failed to make out a prima facie case of nondelivery, which is absolutely essential before the defendant need offer any rebutting testimony by way of explanation. As the case stood, the court was warranted in assuming that the loss may have occurred after the delivery of the trunks at the plaintiff’s home. The judgment should be affirmed, with costs.