Margoshes v. Reo Stores, Inc.

203 Misc. 588, 123 N.Y.S.2d 602, 1953 N.Y. Misc. LEXIS 2001

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 22, 1953
• Status: Published

Opinion

Per Curiam.

The provision in the storage receipt purporting to exculpate defendant from liability for delay in redelivery of plaintiff’s coat was not sufficiently broad to relieve it from liability for negligence (Howard v. Handler Bros. & Winell, 279 App. Div. 72, 75, 76, affd. 303 N. Y. 990). However, it was error to treat the delay upon the same basis as if the garment had been wrongfully converted. Under the circumstances of this case, plaintiff may only claim damages measured by the difference between the value of the coat at the agreed time of delivery and at the time of actual delivery, or, if there is no such difference, then the value of its use for the period during which she was deprived of the same. (Cohen v. Kaback, 153 N. Y. S. 5; Levy v. World Film Corp., 106 Misc. 478; Porter v. Duval Co., 60 Misc. 122.) Viewing the action as one for breach of contract of bailment, the amount awarded was excessive.

The judgment should be unanimously reversed upon the law and facts and new trial ordered, with $10 costs to defendant to abide the event, unless within ten days from the entry of the order hereon plaintiff stipulates to reduce the recovery to $25, plus $2.25 costs, and accept the return of her coat. Appeal from order dismissed as academic.

Walsh, Golden and Murphy, JJ., concur.

Judgment reversed, etc.