
    Wintringham v. Hayes.
    (City Court of Brooklyn
    General Term,
    May, 1893.)
    In an action to recover for the value of work, labor and services rendered and materials furnished in the construction of a centerboard for defendant’s yacht, defendant counterclaimed for injuries to the boat while in plaintiff’s possession for care and hire. Evidence on defendant’s behalf to show that the injuries were not the result of wear and tear was rejected. Seld, error.
    The evidence showed that the boat was in apparently good condition when plaintiff received it. Seld, that plaintiff’s motion to dismiss the counterclaim should have been denied.
    
      JR. Burnham JMoffait, for plaintiff (respondent).
    
      JR. W. G. WelUng, for defendant (appellant).
   Clement, Olí. J.

The questions involved as to the second counterclaim seem to have been purely of fact, and the referee found that the boat in question was never delivered to the plaintiff. There was no dispute that it was left on his premises, and there was a question of fact whether it was so left with him as bailee, or at the owner’s risk. We know of no reason why the finding of the referee on this question should be disturbed.

We are of opinion that the referee erred in dismissing the first counterclaim. There was testimony to show that the yacht was in “ apparently good condition ” in the fall of 1890, and was left with the plaintiff, who agreed to care for same for the sum of twenty dollars per month. In the spring, the defendant found the starboard bow of the boat in a damaged condition. The following is from the testimony of John McDonald: “ Q. Did any of the injuries which you have described exist at the time you delivered the boat to Mr. Wintringham in the fall of 1890 ? A. They did not. Q. Were the injuries you have testified the boat sustained, ordinary injuries of wear and tear ? [Objected to, as calling for a conclusion; sustained; exception by defendant’s counsel.] Q. What did the general appearanco of the boat indicate as to the care which she had received \ [Same objection, ruling and exception.] ” We think that defendant had the right to prove by an expert that the injuries were not the result of wear and tear.

In the case of Collins v. Bennett, 46 N. Y. 490,494, Judge Peckham said: “ Here it will be observed this horse was in the exclusive possession of the defendant. He had charge and care of him for hire. During that charge, he is injured in a way that ordinarily does not occur without negligence, usually not without the horse has been used and then been neglected. This may be safely said on the evidence and upon human experience. In such case the burden rests with the custodian to show how the injury occurred, and that he was not guilty of the negligence that caused it.” In this case, the yacht was in the exclusive possession of the plaintiff. He had charge and care of it for hire. During that charge, it is injured in a way that ordinarily does not occur without negligence. We can assume that yachts in the winter are put in a place where injury will not occur without negligence. The yacht was not injured as the result of ordinary wear and tear, for an offer of such testimony was erroneously excluded. A presumptive case of negligence was made out against the plaintiff, and the motion to dismiss the first counterclaim should have been denied. The amount in dispute was thirty-six dollars, and the judgment should be reduced by that amount and interest from May 1, 1890, making a total of forty-one and sixty-five-one-hundredths dollars.

We have examined the other exceptions in the case and found no error.

Judgment reversed and new trial granted, costs to abide the event, unless within ten days the respondent file with the clerk a stipulation reducing the principal of the judgment by the sum of forty-one and sixty-five-one-hundredths dollars, in which case the judgment appealed from is affirmed without costs.

Yah Wtok, J., concurs.

Judgment accordingly.  