
    Rinaldi & Sons, Inc., Formerly Known as Bella Donna Packing Co., Inc., Appellant-Respondent, v Wells Fargo Alarm Service, Inc., a Division of Baker Protective Service, Inc., Formerly Central Station Signals, Inc., Respondent-Appellant.
    Argued February 9, 1976;
    decided April 1, 1976
    
      David H. Deitsch for appellant-respondent.
    I. The liquidated damages clause in defendant’s contract is invalid because a liquidated damage clause in a contract is not valid unless the amount specified in the contract is reasonably related to the potential damages. (Joy Vending Co. v S. & A. Luncheonette & Rest., 15 Misc 2d 565; Seidlitz v Auerbach, 230 NY 167.) II. The "limitation” clause of defendant’s contract is clearly ambiguous because it is characterized as a liquidated damage clause but apparently is intended as a limitation of liability and this ambiguity should be resolved against the draftsman, defendant, and in favor of plaintiff. (Evelyn Bldg. Corp. v City of New (York, 257 NY 501; Taylor v United States Cas. Co., 269 NY 360.) III. The "limitation of liability” clause is not valid because it does not provide a limitation of liability for defendant’s negligence and further it is not valid because it was not between parties of equal bargaining power, it was not clear, concise and specific, and it was against the public interest. (Redding v Gulf Oil Co., 38 AD2d 850; Van Dyke Prods, v Eastman Kodak Co., 12 NY2d 301; Ciofalo v Vic Tanney Gyms, 10 NY2d 294; Levine v Shell Oil Co., 28 NY2d 205; Thompson-Starrett Co. v Otis Elevator Co., 271 NY 36; Laba v Carey, 29 NY2d 302.) IV. The "limitation of liability” clause was not valid since it did not provide any schedule of alternate rates as a consideration for the limitation of liability. (Melodee Lane Lingerie Co. v American Dist. Tel. Co., 18 NY2d 57.) V. The limitation of liability clause was not valid since it violated section 5-323 of the General Obligations Law. (Melodee Lane Lingerie Co. v American Dist. Tel. Co., 18 NY2d 57; Rogers v Dorchester Assoc., 32 NY2d 553.) VI. The refusal to grant full damages to plaintiff on the grounds that they are excessive in light of the extent of the charges made by defendant for its services has no basis in law. (Preston Co. v Funkhouser, 261 NY 140; Mutual Life Ins. Co. of N. Y. v Tailored Woman, 283 App Div 173; Delehanty v Walzer, 271 App Div 886, 298 NY 820.)
    
      Saul Goldstein for respondent-appellant.
    I. The new findings of fact and conclusions of law made by the court below, reversing the trial court’s findings which were made on contested evidence and which held that plaintiff had failed to establish its burden of proof, is contrary to the weight of the credible evidence contained in the record below; therefore the decision of the trial court should be reinstated. (Chamberlain v Feldman, 300 NY 135; Roberts v Fulmer, 301 NY 277; Pocket Books v Meyers, 292 NY 58; Morton L. Ackerman, Inc. v Mohawk Cabinet Co., 37 AD2d 655; Kenyon v Knights Templar & Masonic Mut. Aid Assn., 122 NY 247; Lachs v 
      
      Fidelity & Cas. Co. of N. Y., 306 NY 357; Berg v Auto Wheel Ind., 32 AD2d 876; Pollard v Trivia Bldg. Corp., 291 NY 19; Matter of Schmith, 19 NY2d 398; Fair Pavilions v First Nat. City Bank, 19 NY2d 512.) II. The findings of fact and conclusions of law of the court below, which affirmed the identical findings below, that the liability of Wells Fargo was limited to the amount of $50 in the event of a breach of the contractual obligations, is a correct statement of the applicable law and is supported by the weight of credible evidence, and should be affirmed. (Ciofalo v Vic Tanney Gyms, 10 NY2d 294; Conklin v Canadian-Colonial Airways, 266 NY 244; H. G. Metals v Wells Fargo Alarm Servs., 45 AD2d 490; Hertz Commercial Leasing Corp. v Transporation Credit Clearing House, 59 Misc 2d 226; Guspari v Gorsky, 29 NY2d 891; Simon v Electrospace Corp., 28 NY2d 136; Farr v Newman, 14 NY2d 183; Harrington v Harrington, 290 NY 126.) III. Plaintiffs arguments that the court below erred in upholding the limitation of liability provision, is based on the dissent of Judge Hopkins, and presents no reasons for reversal of the court below. (Ciofalo v Vic Tanney Gyms, 10 NY2d 294; Van Dyke Prods, v Eastman Kodak Co., 12 NY2d 301; Redding v Gulf Oil Co., 38 AD2d 850; Kaufman v American Youth Hostels, 5 NY2d 1016; Thompson-Starrett Co. v Otis Elevator Co., 271 NY 36; Levine v Shell Oil Co., 28 NY2d 205; Corhill Corp. v S. D. Plants, Inc., 9 NY2d 595; Muzak Corp. v Hotel Taft Corp., 1 NY2d 42; Wick Co. v Lee Dying Co. of Johnstown, 71 Misc 2d 82.) IV. Plaintiffs contentions that the limitation of liability clause is unenforceable because it is an invalid liquidated damage clause is wholly without merit and is merely a make-weight argument that need not be considered by this court. (Perma-Stone Bi County Corp. v Ackerman, 15 Misc 2d 640, 8 AD2d 731; Knoblauch v Little Falls Dairy Co., 241 App Div 910; Jarro Bldg. Ind. Corp. v Schwartz, 54 Misc 2d 13.) V. The argument made by plaintiff that the limitation of liability clause in the contract is not valid as it violated section 5-323 of the General Obligations Law is without merit and is also a mere make-weight argument, which this court need not consider. VI. Plaintiffs argument that the judgment in its favor, by the court below, is inadequate as a matter of law, is a total "non sequitor” and does not raise an issue on the within appeal. (Pollard v Trivia Bldg. Corp., 291 NY 19; Matter of City of New York [Vernon Parkway], 285 NY 326.)
   Chief Judge Breitel.

Plaintiff Rinaldi is a subscriber to defendant Wells Fargo’s burglar alarm reporting service. Rinaldi sued Wells Fargo for breach of contract and negligence, alleging defendant’s failure to report a burglary signal. Supreme Court after trial dismissed the complaint. The Appellate Division reversed and directed judgment in favor of Rinaldi for $50, damages as limited by the liability clause in their agreement. Both parties appeal.

The issues are whether, if there were equally balanced evidence, plaintiff proved its case and, strongly raised by the parties and considered by the courts below, whether the contractual limitation of liability was valid.

There should be a reversal. It is a truism that a plaintiff must prove his case, and that means by a preponderance of the evidence. If the evidence is evenly balanced, plaintiff has not met its burden. The evidence on the issue of the causal relation between the failure to report the burglary signal and the burglary loss was evenly balanced as a matter of logic or law, and thus Rinaldi failed to prove its case by a preponderance of the evidence. In any event, in the absence of countervailing public policy, the contractual limitation of liability is enforceable.

On April 28, 1972, Rinaldi’s restaurant supply warehouse in Brooklyn was burglarized. Approximately 30,000 pounds of cheese, $200 in cash, and a truck were stolen.

The warehouse had been protected by an internal burglar alarm system. As an additional safeguard, in March, 1968, Wells Fargo installed an electrical circuit burglar alarm reporting system. The initial installation charge was $37.50, and the service charge was $10 per month. The agreement provided that Wells Fargo was "not an insurer and that the payments hereinbefore named are based solely on the value of the services described and, in case of failure to perform such service, and a resulting loss, [Wells Fargo’s] liability hereunder shall be limited to and fixed at the sum of Fifty Dollars ($50.00) as liquidated damages, and not as a penalty and this liability shall be exclusive.”

The reporting system was designed to monitor the internal burglar alarm, also an electrical system. From four to six subscribers’ burglar alarm systems, including Rinaldi’s, were connected to Wells Fargo’s central office by a party telephone line. A triggering of the internal burglar alarm in any particular premises would cause a coded signal to be sent to the central office.

The reporting system could also produce an uncoded signal if an internally caused break in the circuit occurred anywhere in the interconnected alarm reporting system, even if not caused by the rarer incidence of a burglar’s intrusion. It was admitted by Wells Fargo that such a break "might mask an intrusion”, although the industry’s experience was to the contrary.

On April 28, 1972, at about 2:00 a.m., Wells Fargo received an uncoded signal indicating a break in the line to which Rinaldi’s internal alarm was connected. Wells Fargo followed its usual practice and reported the break only to the telephone company. At 6:30 a.m., the burglary was discovered. At the premises the link connecting the interacting burglary alarm, burglary reporting, and telephone systems had been cut.

The trial testimony regarding the method by which the burglars had foiled the system was largely inferential and sharply conflicting. Whether the "foiling of the system” occurred before or after the break in through the roof of the warehouse was of crucial importance in determining whether Wells Fargo’s failure to notify the police and Rinaldi upon receipt of the equivocal signal was the cause of the burglary loss.

Two experts testified for Rinaldi that, in their opinion, the burglars had first cut the significant link and then looted the warehouse at their relative leisure, taking anywhere from two to four hours. The implication of such testimony was that, had Wells Fargo promptly reported the signal to Rinaldi or the police, the burglary would have been frustrated. These opinions were based not upon any actual or closely calculated knowledge of the sequence of what happened but only upon a general inference based allegedly on general experience as to what that sequence would often be.

Wells Fargo’s expert testified contrarily to a different inference. In his opinion, also resting upon a general inference derived from what it was said general experience would prove to be the case, the burglars had entered through the concededly unprotected roof, looted the warehouse, and, just before leaving, in order to remove the loot through the regular means of egress, cut the link. The necessary implication of his inference, if true, was that, even if Wells Fargo had promptly notified Rinaldi or the police of the equivocal signal, the burglary would have been completed by the time the police arrived.

If the conflicting opinions were based on identical evidentiary facts about which there was no dispute and no intruding valuation based on credibility or accuracy, there was no room for a fact-finding function in choosing between the contrary inferences. In such case, it may be said that as a matter of logic one inference was just as likely to be true as the other. In such case there is a 50% probability, and a 50% probability means that no one result is any more likely than the other, as a matter of logical necessity, and therefore as a matter of law. (See, e.g., Carrera v State of New York, 29 AD2d 577, 578.)

Plaintiff has the burden of proving his case by a fair preponderance of the credible evidence. If, at the close of the proofs, the evidence as a matter of logical necessity is equally balanced, plaintiff has failed to meet his burden and the cause of action is not made out (e.g., Ford v McAdoo, 231 NY 155, 160-161; Matter of Erin Wine & Liq. Store v O’Connell, 283 App Div 443, 446, affd 307 NY 768, and cases cited; cf. Roberge v Bonner, 185 NY 265, 269; Richardson, Evidence [10th ed], § 97, p 74).

In the present case, given that receipt even of an uncoded signal, indicating a break in the line, is one which "might indicate illegal entry”, Rinaldi did not meet its burden of proving that the failure to report was the cause of the burglary loss. The crux of the problem was whether the signal preceded or followed the break in. Concerning the sequence of events, the experts could only testify to plausible inferences, the respective probabilities of which were exactly equal on the conceded evidentiary facts, that is, facts as to which there was testimony based upon actual perception. The evidence, based only upon conjecture or speculation, as a matter of law, could not be found to preponderate in favor either of plaintiff’s or defendant’s hypothesized history of the successful burglary (cf. Carrera v State of New York, 29 AD2d 577, 578, supra). Consequently, plaintiff which had the burden of proof had not sustained it. Interestingly, in a case involving remarkably similar facts, it has been said that the question of the burglars’ sequence of operation is impossible of resolution, and, at best, susceptible only of speculation (H. G. Metals v Wells Fargo Alarm Servs., 45 AD2d 490, 493 [Lane, J., dissenting]).

On this score, there must be a reversal and therefore a conclusión that the Appellate Division determination may not stand, however correct it may have been with respect to the limited liability clause in the service agreement, despite the agreement’s reference to "liquidated damages”, analytically a different category with different governing rules (see Ciofalo v Vic Tanney Gyms, 10 NY2d 294, 296-297; H G. Metals v Wells Fargo Alarm Servs., supra, at p 493; Restatement, Contracts, § 339, at p 554, Comment g; §§ 574-575; 6 Williston, Contracts [rev ed], § 1751, at pp 4962-4963; 6A Corbin, Contracts, § 1472, at pp 596-597; 41 NY Jur, Negligence, § 5; 17 CJS, Contracts, § 262; Limiting Liability for Own Negligence, Ann., 175 ALR 8, 12-16; compare Liquidated Damages—Burglar Alarm, Ann., 42 ALR2d 591, 592-593, citing cases interchangeably discussing rules applicable to liquidated damages and limitations of liability).

Accordingly, the order of the Appellate Division should be reversed, with costs to defendant Wells Fargo, and the judgment of Supreme Court dismissing the complaint reinstated.

Judges Jasen, Gabriellx, Jones, Wachtler, Fuchsberg and Cooke concur.

Order reversed, etc.  