
    Annie P. Lynch, Respondent, v. John C. Kluber et al., Appellants.
    (Supreme Court, Appellate Term,
    June, 1897.)
    1. Warehousemen — Degree of care.
    Storage warehousemen are bound to take the same degree of care of property committed to their charge which prudent persons usually take of their own property, and they are liable only for ordinary neglect.
    
      2. Same — Loss of goods — Burden of proof.
    Where a customer proves that her property was in good condition when it reached the possession of the warehousemen, and that when returned to her it was damaged in a manner and to an extent that would have been impossible if the property had been properly cared . for, the customer had made out a prima facie ease, and it then becomes the duty of the warehousemen to show that the injury did not happen in consequence of their failure to use all the care and diligence which a prudent person would exercise- in relation to his own property.
    3. Same— Cost of repairs.
    Where property which has been stored has been damaged and subsequently repaired, proof of the cost of repairs, standing alone, may be objectionable; but where it is followed by the evidence, of the . repairer, showing that the charges made for repairs were reasonable, there is legal proof of the damage.
    Appeal by defendants from judgment of the Eighth District Court. .
    William J. Kane, for appellants.
    Maurice Meyer, for respondent.
   McAdam, J.

The plaintiff on April 20, 1896, left with the defendants, storage warehousemen, a quantity of personal property for safe keeping, and after being' in their warehouse for a number of months certain of said articles, specified in the' bill of particulars, were upon redelivery to her found to be damaged, and the articles designated therein as “missing property” were not returned to her. The action was to recover damages for the wrong.

The defendants pleaded a general denial, and set up a lien for unpaid storage.

The issues were sharply contested at the trial, and the justice decided that the damages sustained amounted to $197, upon which he credited the defendants $36 for the storage, and awarded a judgment for the difference, $161, with costs.

Warehousemen are bound to -the same degree of care which prudent persons usually take of their own property (Edw. Bailm., § 333; Knapp v. Curtis, 9 Wend. 60), and are liable only for ordinary neglect. Titsworth v. Winnegar, 51 Barb. 148; Powers v. Mitchell, 3 Hill, 545. The defendants claimed that there was no affirmative proof of negligence- on their part, and that without this the plaintiff established no cause of action as to the damaged articles. The plaintiff proved that her property was in good condition when it reached the defendants’ possession,, and that when returned to her it was damaged in a manner and to. an extent that would, have been impossible if properly cared for. This made out a prima facie case for the plaintiff, and cast upon the defendants the duty of showing that the injury did not happen in consequence of their neglect- to use all the care and diligence which a prudent person would exercise in relation to his own property. For the rule is that-wheré property intrusted to a warehouseman has been returned injured, it is incumbent on him.to show how the injury occurred, as it is a more legitimate inference in such case to conclude that there was a want of proper care and diligence than to .presume it was exercised. Arent v. Squire, 1 Daly, 347; Reed v. Crowe, 13 id. 165; Coleman v. Livingston, 36 N. Y. Supr. Ct. 32; affd., 56 N. Y., 658; Ouderkirk v. Cent. Nat. Bk., 119 N. Y. 263.

The evidence offered by the defendants failed to exculpate them from the' negligence charged, and the justice accordingly held them liable for the damage resulting from their neglect.

The.property not returned was proved to have been worth $87, and this amount was also charged to the defendants.

The defendants were directed by the plaintiff to deliver certain of her goods to one Darling, an auctioneer, and instead of doing so they delivered them to another auctioneer named Garland, from whom Darling afterwards succeeded in recovering some but not all of the articles. Those not recovered were worth $14, and this sum with the items before referred to and $1 for injury to thapiano made up the judgment awarded.

There was a conflict as to the defendants’ bill for storage, the plaintiff claiming a special agreement at the rate of $12 a month, and the defendants alleging one at $18 a month. The justice^ found in favor of the plaintiff’s contention; so that after crediting; the payment on account the defendants’ lien was reduced to $36, the sum allowed by the justice.

Indeed all the questions litigated were questions purely of fact arising from conflicting evidence, and the findings of the trial judge-thereon being sufficiently sustained are regarded as conclusive, though we might, if in his place, have reached another conclusion. Carey v. Smith, 5 App. Div. 505; Lynch v. Brooklyn R. R. Co., 6 id. 609.

“ When there is evidence on both sides and the case is balanced and the mind of the court has been called upon to weigh conflicting-statements and inferences, and decide upon the credibility of opposing witnesses, much weight must be accorded to the special adaptation of the trial court to investigate and determine such questions. Any other rule would nullify the peculiar advantages-which that tribunal possesses, in observing the manner and appearance of the witnesses produced, and the various physical and mental peculiarities by which the mind of the professional observer determines the degree of credit which ought prudently to be attached to-oral testimony. These rules have been the subject of frequent comment in the courts, and are fully sustained by authority.”' Baird v. Mayor, 96 N. Y. 577.

The defendants excepted to the admission of evidence as to the cost of repairs- to certain of the articles. Standing alone, this-might have been objectionable; but it was followed up by the evidence of the person who made the repairs, showing that the charges-therefor were reasonable and amounted to the sums testified to- by the previous witness. This was legal proof of the damage, and obviated any force the objection might otherwise have had. La Fayette v. Gaffney, 47 Hun, 583; Gumb v. R. R. Co., 114 N. Y. 411.

Judgment must be affirmed, with costs.

Daly, P. J., and Bisci-ioff, J., concur.

Judgment affirmed, with costs.  