
    Henry Simonoff and Louis Lemmnoff, Respondents, v. William Fox, Appellant.
    (Supreme Court, Appellate Term,
    January, 1905.)
    Negligence — Action for non-delivery of goods — Credibility of witness — Question for jury.
    Where, in an action against a general truckman to recover the value of goods entrusted to him for delivery to a third person, the evidence of non-delivery of the goods to the latter is entitled to but little weight and defendant’s wagon boy testifies that he delivered the goods to the receiving clerk of the consignee and returned the receipt book to plaintiff’s shipping clerk, who positively denies ever having received it, or any receipt back from the boy, the receiving clerk of the consignee not being called in rebuttal, the jury have a right to disbelieve the wagon hoy and a judgment entered upon a verdict for the plaintiff must stand.
    Appeal from a judgment of the City Court of the city of ¡New York, entered in favor of the plaintiffs upon the verdict .of a jury and from an order denying a motion for a new trial.
    
      Hawes & Judge (Gilbert Ray Hawes and John E. Judge, of counsel), for appellant.
    Reed & Reed (Francis C. Reed, of counsel), for respondents.
   MacLean, J.

This was an action to recover the value of goods entrusted, as alleged, to the defendant, on or about February 3, 1902, to deliver to the Jacobson Skirt Company and negligently lost by him. “ Where there is a total default in delivering or accounting for the goods ’ (9 Wend. 268), this is to be treated as prima facie evidence of negligence.” Claflin v. Meyer, 15 N. Y. 260, 262. Herein, however, the defendant by his employee, a wagon boy, testified to their delivery to the receiving clerk of the Jacobson Skirt Company and the return of the receipt-book to the shipping clerk of the plaintiffs. On the other hand, one Jacobson testified that he did not know whether he was at his place of business on February third; that four young men were employed by him; that he never received the goods; that he knew of his own knowledge that the goods were not received by having gone through the different orders, and that ten or twelve days later they looked for the goods but could not find them in stock. This, the only, mayhap slight, evidence of nondelivery may not be said to be of weight with the positive testimony of the wagon boy, nor was there so much as attempt at flat contradiction by calling, as they might, the receiving clerk of the consignee. But the shipping clerk of the plaintiffs positively denied ever having received the receipt-book or any receipt back from that boy for those goods. In this material particular the jury may have believed the clerk and disbelieved the boy, and so have disregarded the testimony of the latter, quite within their province, as their verdict in favor of the plaintiff would seem to indicate, and the judgment entered thereon must stand.

Soott and Davis, JJ., concur.

Judgment affirmed, with costs.  