
    Edmund Blunt, App’lt, v. Elmer Barrett, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 14, 1891.)
    
    ¡Evidence—Burden of proof.
    Plaintiff, by his complaint, alleged his title to a certain yacht and charged that defendant wrongfully took her from her moorings to another anchorage where she was injured. Defendant admitted plaintiff’s title and alleged that he rightfully took the vessel as her custodian, as was his duty, and removed her to a place where he had no reason to apprehend any harm to her. Upon the trial the court charged that “the burden of proof is upon plaintiff and he must establish by a preponderance of evidence that the removal of the vessel was without authority and without color of authority.” Held, error; that the burden was with defendant to establish this affirmative defense of justification.
    Appeal from judgment of the general term of the superior court of the city of New York, affirming judgment entered on a verdict in favor of the defendant .
    
      James A. Briggs, for app’lt; Charles Blandy, for resp’t.
    
      
       Reversing 7 N. Y. State Rep., 27.
    
   Bradley, J.

The action was brought for an alleged wrongful taking by the defendant of the plaintiff’s yacht from a certain place where she had been laid up for the winter to another place in East river, where she sunk and was greatly damaged.

The question here arises upon the plaintiff’s exception taken to the charge of the court to the jury that “ the burden of proof is upon the plaintiff and he must establish by a preponderance of evidence that the removal of the vessel was without authority and without color of authority.” This calls atténtion to the issue presented by the pleadings, by which it appears -that the plaintiff alleged his title to the yacht at the time in question, and charged that the defendant wrongfully took her from the Knickerbocker Club grounds at Port Morris in the county of Westchester,to the foot of East One Hundred and Nineteenth street in the city of New York, and there attached the yacht to a buoy, where she was subjected to the rising and falling of the tide and exposed to danger, and that the yacht sunk and was injured. The defendant, by his answer, admitted the plaintiff’s title, and that he (defendant) took the yacht from and to the places mentioned in the complaint, and that she sunk; denied that he wrongfully took the vessel there, and alleged that he had the right and it was his duty towards the plaintiff, as the custodian of her, to remove the yacht to some safe and convenient place, and that he removed her from the place first mentioned to the foot of Bast One Hundred and Nineteenth street, where he had no reason to apprehend any harm to the vessel. It must be assumed under our system of pleadings that the plaintiff took issue upon those allegations justifying the taking, and, therefore, the affirmative of such issue was with the defendant. The burden was with the defendant to establish this affirmative defense of justification of the- taking so alleged by him, and it was error for the court to charge the jury that the burden to prove the contrary was with the plaintiff. Heinemann v. Heard, 62 N. Y., 448.

When the defendant admitted the taking and the plaintiff’s title, his defense was dependent upon some right by way of justification to take and remove the yacht, and that was essentially matter to be pleaded by him to render evidence of the facts admissible as a defense. Demick v. Chapman, 11 Johns., 132. And .the burden of proof by the issue so made, having been taken by the defendant, was not shifted to the plaintiff at the trial. As a rule it remains where the issue made by the pleadings places it, although the weight of the evidence on one side may have a controlling effect unless met by proof of the other party. Heilman v. Lazarus, 90 N. Y., 672.

It may be that the attention of the court was not specifically called to the pleadings, and it may be, as suggested in the court below, that the charge in question did not in. fact have any influence on the result, but it cannot be seen that it may not have prejudiced the plaintiff, and, therefore, the error cannot be disregarded on review.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur.  