
    Equitable Paper Bag Co., Inc., Respondent, v. The Long Island Railroad Company, Appellant.
    
    Supreme Court, Appellate Term, First Department,
    November 1, 1939.
    
      Louis J. Carruthers [William McNamara of counsel], for the appellant.
    
      Benjamin Feldstein, for the respondent.
    
      
       Application for reargument or for leave to appeal denied by Appellate Term (N. Y. L. J. Nov. 17, 1939, p. 1674) and by Appellate Division (Id. Dec. 11, 1939, p. 2077).
    
   Per Curiam.

A bailor suing a warehouseman for failure to deliver goods intrusted to him, has the burden of proving the negligence of the bailee. If he proves demand upon the warehouseman and his refusal to deliver, these facts unexplained are prima facie evidence of negligence. If it appears from the proof offered by the plaintiff or the defendant that the loss is due to fire, that fact in itself, in the absence of circumstances permitting the inference of lack of reasonable precautions, does not suffice to show neglect; the plaintiff having the affirmative must in such case go forward with evidence to show negligence. As1 there is no evidence of negligence in this case defendant’s motion for the direction of a verdict should have been granted. (Draper v. D. & H. Canal Co., 118 N. Y. 118; Southern R. Co. v. Prescott, 240 U. S. 632; Liberty Ins. Co. v. Central Vermont R. R. Co., 19 App. Div. 509.)

Judgment reversed, with costs, and judgment directed in favor of the defendant, with costs. Appeal from order dismissed.

Shientag and Noonan, JJ., concur; Hammer, J., dissents.

Hammer, J.

I dissent. (See Russell Mfg. Co. v. New Haven Steamboat Co., 50 N. Y. 121.)  