
    William G. Clifford, Appellant, v. The Universal Storage Warehouse and Express Company, Respondent.
    (Supreme Court, Appellate Term,
    February, 1907.)
    Warehousing — Actions against warehousemen — Sufficiency of evidence.
    In an action by the owner of goods stored in a warehouse, destroyed by a fire which consumed the building, on the ground of negligence of the warehouseman and also on the ground of fraud in falsely representing the warehouse to be fire proof, where it appeared that old rags, burlaps and excelsior were stored in an old van near the elevator shaft; and where it also appeared that, upon plaintiff’s application for storage, shortly before the fire, defendant’s secretary referred him to a stock clerk and foreman who, in answer to plaintiff’s inquiries, told him it was an absolutely fire proof building; it was error for the court to take the case from the jury and dismiss the complaint and the judgment for defendant will be reversed.
    Appeal by the plaintiff from a judgment of the City Court of the city of 2STew York, entered upon the dismissal of the complaint in favor of the defendant.
    William L. Cahn (Edgar M. Levintritt. of counsel), for appellant.
    Leopold Leo, for respondent.
   MacLean, J.

Having lost certain goods stored in the defendant’s warehouse, which with its contents was destroyed by fire, the plaintiff brought this action for two causes: (1) The negligence in failing to take proper care; and (2) deceit in falsely and fraudulently representing the warehouse to be a fireproof building, whereby the plaintiff, the same believing, was induced to store in said warehouse his goods and effects. The complaint was dismissed as to both causes of action. Although in support of the first the proof was meagre, indeed, there was evidence, from the situation found by the firemen in breaking in the doors and the testimony that articles so readily combustible as old rags, burlaps and excelsior were stored in an old van near the elevator shaft, from which might have been inferred lack on the part of the bailee of the care which persons of ordinary prudence exercise in the management of their own property. Upon the second cause of action there was sufficient to present an issue for consideration of the jury under the doctrine laid down in Hickey v. Morrell, 102 N. Y. 454, and followed since; for, as the plaintiff testified, with some corroboration by the defendant’s president, upon his application less than three weeks before the fire for storage at the company’s office he was referred by the secretary to one Altschul, a stock clerk and foreman, who, upon inquiry by the plaintiff as to the condition of the building, said: “ It is an absolutely fireproof building.” The judgment should be reversed.

Ctldersleeve and Amend, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  