
    Henry C. Wintringham, Resp't, v. J. Noble Hayes, App'lt.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed May 22, 1893.)
    
    1. Bailment—Evidence.
    Where articles when placed in the custody of a bailee were in good condition, and are afterward found to be injured, the owner has a right to prove by an expert that the injuries were not the result of wear and tear.
    2. Same—Neuliuence—Burden op proof.
    In such case the burden is upon the custodian to show how the injury occurred, and that he was not guilty of negligence.
    Appeal from judgment in favor of plaintiff.
    Action to recover for materials and labor alleged to have been supplied and rendered to defendant upon his yacht in the year .1890. The answer was a1 denial of the value of the services and two counterclaims, one for injuries to the yacht while in plaintiff’s custody, and the other’for the loss of • a yacht’s boat.
    
      R. Burnham Moffatt, for resp't; R. W. G. Welling, for app'lt.
   Clement, Ch. J.

The questions involved as to the second ■counterclaim seem to have been purely of fact, and found that the boat in question was never delivered to the plaintiff. There was no dispute jfchat it was left on his premises, and there was a question of fact whether it was so left with him as "bailee, or at the owner’s risk. We know of no reason why the finding of the referee on this question should be disturbed.

We are of opinion that the referee erred in dismissing the first counterclaim. There was testimony to show that the j'acht was in “ apparently good condition " in the fall of 1890, and was left with the plaintiff, who agreed to care for same for the sum of twenty dollars per month. In the spring the defendant found the starboard bow of the boat in a damaged condition. The following is from the testimony of John McDonald :

“ Q. Did any of the inj uries, which you have described, exist at the time you delivered the boat to Mr. Wiutringham in the fall of 1890 ? A. They did not.
“ Q. Were the injuries which you have testified which the boat sustained, ordinary injuries of wear and tear?
“ Objected to, as calling for a conclusion ; sustained. Exception by defendant’s counsel.
“ Q. What did the general appearance of the boat indicate as to the care which she had received ?
“ Same objection, ruling and exception.”

We think that defendant had the right to prove by an expert that the injuries were not the result of wear and tear.

In the case of Collins v. Bennett, 46 N. Y., 490, Judge Peckham said : “ Here, it will be observed, this horse was in the exclusive possession of the defendant He had charge and care of him for hire. During that charge he is injured in a way that ordinarily does not occur without negligecce, usually not without the horse has been used and then been neglected. This may be safely said on the evidence and upon human experience. In such ease the burden rests with the custodian to show how the injury occurred, and that he was not guilty of the negligence that caused it” In this case, the yacht was in the exclusive possession of the plaintiff. He had charge and care of it for hire. During that charge it is injured in a way that ordinarily does not occur without negligence. We can assume that yachts in the winter are put in a place where injury will not occur without negligence. The yacht was not injured as the result of ordinary wear and tear, for an offer of such testimony was erroneously excluded. A presumptive case of negligence was made out against the plaintiff, and the mo-, tion to dismiss the first counterclaim should have been denied. The amount in dispute was thirty-six dollars, and the judgment .should be reduced by that amount and interest from May 1,1890, making a total of $41.65.

We have examined the other exceptions in the case and found no error.

Judgment reversed and new trial granted, costs to abide the event, unless, witiiin ten days, the respondent file with the cleric a stipulation inducing the principal of the judgment by the sum of $41.65, in which case the judgment appealed from is affirmed, without costs.

Van Wyck, J., concurs.  