
    COLLINS, Respondent, v. MILLER et al., Appellants.
    (Supreme Court, Appellate Term.
    May, 1902.)
    Action by Thomas Collins against Abraham Miller and others.
    Einstein & Townsend, for appellants. A. Morris, for respondent.
   PER CURIAM.

The facts are undisputed. On a Saturday in August, 1899, defendants hired a horse of the plaintiff. The horse was in first-class condition, and was to be returned the same night to the stables where he was kept. He was not returned, and on Monday next the defendants informed the stablekeeper that the horse was dead. It appears that he did a hard day’s work on Saturday, and was taken ill, and that, on the advice of a veterinary surgeon, the defendants’ driver gave the horse niter, and the animal died shortly after-wards. This Saturday was a very hot day, and, as we have stated, the horse appears to have been worked very hard by the defendants’ driver. The value of the horse, at the time of entering into the employ of defendants, is stated on reliable authority to have been $150, for which amount, with costs, the justice gave judgment in favor of plaintiff. Defendants appeal. There is quite sufficient evidence to warrant the justice in concluding that the horse died through the improper treatment and negligence of' defendants. Where a horse is in sound condition when it leaves the plaintiff, and is taken into the custody of the defendants, the loss of the horse while in the possession of.defendants establishes a prima facie case against the defendants to put them on their defense. Rutherford v. Krause, 55 App. Div. 210, 66 N. Y. Supp. 781; Lyns v. Thomas, 34 Misc. Rep. 175, 68 N. Y. Supp. 802; Whalen v. Electric Co., 63 App. Div. 615, 71 N. Y. Supp. 593; Nichols v. Balch, 8 Misc. Rep. 452, 28 N. Y. Supp. 667. Defendants’ excuse is that, upon the advice of a veterinary, their driver gave niter. It appears, however, that the driver did not know the person who gave the advice was a veterinary, or have any reason so to believe at the time of giving the niter. The fair inference from the testimony is that the horse was overworked by the driver, under the directions of defendants, on a hot day. As the horse was sound when delivered to the defendants, the onus was upon them to show that they took proper care of him, and were not guilty of negligence that caused the death. Collins v. Bennett, 46 N. Y. 490. This they have failed to do. The defendants’ driver, in his somewhat confused and contradictory evidence, says that he was not sure that it was niter that was given to the horse, but that something was given which somebody told him was niter. The judgment was right, and must be affirmed, with costs. Judgment affirmed, with costs.  