
    Henry C. Wintringham, Resp’t, v. J. Noble Hayes, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 27, 1894.)
    
    1. Evidence—Opinion—Hypothetical.
    When the testimony of experts is proper, counsel may assume the exist ence of any state of facts which the evidence tends to justify.
    2. Same.
    • The testimony of an expert as to whether the injuries shown to have been sustained by a yacht are the result of ordinary wear and tear, is competent.
    3. Bailment—Negligence.
    In an action against a bailee for loss or damage to goods by accident, proof of the nature of the accident may afford prima facie evidence of negligence.
    4. Same
    Where the owner is able to prove the condition of the yacht when delivered to the bailee, the nature of the subsequent injuries she sustained, and that they were not the result of ordinary wear and tear, he makes out a prima facie case of negligence, sufficient to cast upon the bailee the burden of rebutting such presumption.
    Appeal from judgment of the general term of the city court of Brooklyn, entered upon an order, which modified and affirmed as modified a judgment in favor of plaintiff entered upon the report of a referee.
    
      J. Noble Hayes, for app’lt; R. Burnham Moffat, for resp’t.
    
      
       Reversing 52 St. Rep. 858.
    
   Bartlett, J.

This is an appeal by the defendant from a judgment of the general term of the city court of Brooklyn modifying and affirming a judgment for plaintiff on trial before a referee.

The plaintiff, a yacht builder, sued for services rendered and materials furnished to defendant’s yacht, White Wing.

The defendant contested the plaintiff’s claim and set up two counterclaims; the first alleged that plaintiff was indebted to the defendant in the sum of five hundred dollars for damages growing out of plaintiff's negligence in the performance of a contract to give a mooring berth and take care of defendant’s yacht, White Wing, while out of commission; the second averred that plaintiff, through his negligence, had lost, or failed to deliver upon demand, to defendant, a yacht’s small boat of the value of sixty-five dollars.

The referee allowed the plaintiff’s demand and dismissed both counterclaims.

The general term held that the first counterclaim was improperly dismissed on the ground that certain evidence was erroneously excluded and that a presumptive case of negligence was made out against plaintiff.

Instead of reversing the judgment and ordering a new trial the general term held that the amount in dispute under the first counterclaim was thirty-six dollars, and that the judgment should be reduced by that amount and interest, making a total of forty-one dollars, and as so reduced should be affirmed, or in default of reduction reversed.

The plaintiff stipulated to reduce the judgment, and thereupon it was affirmed.

The general term was obviously in error in holding that thirty-six dollars and interest was the amount involved under the first counterclaim.

The defendant claimed that his yacht, while in plaintiff’s custody, was seriously damaged and demanded $500. The defendant, under cross-examination, testified that in a conversation with the plaintiff, the latter said that to make temporary repairs of the yacht and to put it in shape where injuries would not go any farther it would cost about thirty-six dollars. The defendant then adds: “ I am not able to recollect fully what the repairs were beyond they were temporary. It was not pretended that they would put the boat back in her original shape.” This is not denied by plaintiff, although he was afterwards recalled as a witness several times.

The defendant sought to prove the amount of his damages under this counterclaim by calling as a witness Maurice D. Lawrence, a shipwright. This witness was put a hypothetical question which assumed the condition of the yacht before and after her injury, and then asked what it would cost to put the boat after the damage described in as good condition as she was assumed by the question to be at the time she was laid up. This question .was objected to and excluded.

We think this was error; the question was within the well-set-tied rule, as laid down by this court, that when testimony of experts is proper, counsel may- assume the existence of any state of facts which the evidence fairly tends to justify. Stearns v. Field, 90 N. Y. 641, and cases cited.

Defendant’s effort to make this proof is further evidence that the general term was mistaken is assuming that the amount in dispute was thirty-six dollars and interest.

We agree with the general term, that it was error in the referee to exclude the evidence of John Macdonald (a shipmaster, who-was in command of the White Wing the season before plaintiff took charge of her), when asked if the injuries to the yacht were the result of ordinary wear and tear.

While it is true, as a general proposition, that a bailor charging negligence on the part of a bailee rests under the burden of proof, yet oftentimes slight evidence will shift the burden to the bailee. In an action against a bailee for loss or damage to goods by accident, proof of nature of the accident may afford prima facie proof of negligence. The J. Russell Mfg. Co. v. N. H. Steamboat Co., 50 N. Y. 121.

In the case at bar if the defendant in support of his first counterclaim is able to prove the condition of the yacht when delivered to plaintiff, the nature of the subsequent injuries she sustained, and that they were not the result of ordinary wear and tear, he will have made out aprima facie case, and the burden of proof will be shifted to the plaintiff, who, as bailee, had the yacht exclusively within his control and should be able to show the manner in which he discharged his contract obligations in the premises. Curtis v. Rochester and Syracuse R. R. Co., 18 N. Y. 544; Collins v. Bennett, 46 id. 494. We, of course, express no-opinion as to the merits, but simply lay down the rule of evidence applicable to this case.

By reason of the errors disclosed in this record before the referee and at the general term there must be a new trial.

In view of this conclusion, it is unnecessary to examine the question presented by the dismissal of the second counterclaim.

The respondent’s point that the appeal should be dismissed, because the matter in controversy is less than $500, is not well taken.

The judgment appealed from is reversed, with costs to abide the event and a new trial ordered. ;

All concur. Judgment reversed.  