Sejalon v. Woolverton

31 Misc. 752, 64 N.Y.S. 48

Opinion

Per Curiam.

There was sufficient evidence adduced upon the trial to warrant the justice in finding, as is assumed from the judgment, that the wheels were transported by the defendant, under a special contract, at the plaintiff’s risk of damage.

The burden was therefore upon the plaintiff to show facts taking the case out of the operation of the exemption clause. Whitworth v Erie R. Co., 87 N. Y. 413, 419; Canfield v. Baltimore & Ohio R. R. Co., 93 id. 532. This he wholly failed to do, and, under the circumstances, we have no alternative other than to affirm, the judgment.

Present: Beekmait, P. J., G-iegebioh and O’Gobmait, JJ.

Judgment affirmed; with costs.