
    EDWARD COLEMAN, Plaintiff and Respondent, v. VAN BRUGH LIVINGSTON, Defendant and Appellant.
    Motion for a reargument of appeal on the ground that a case has been decided in the Court of Appeals since the decision of this case at General Term, which, if it had been known to this court, its judgment on the case would have been different.
    The former judgment and opinion of this court in this case at General Term, reported ante p. 32.
    On examination and consideration of the two cases, this court denies the motion for reargument, on the ground that the facts in the respective cases arc dissimilar, and the cases are not analogous.
    
      Held, in this case and also in Hayner v. Popular Life Insurance Co. (ante 211), That a decision of the Court of Appeals adverse to one of the General Term of this court, and announced about the same time, furnishes good grounds for a reargument of the latter at the General Term of this court.
    
      Before Freedman, Curtis, and Van Vorst, JJ.
    
      Decided June 28, 1873.
    Motion for a reargmnent.
    
      Charles H. Smith, for .the motion.
    
      John McKeon, opposed.
   By the Court.—Freedman, J.

On defendant’s appeal from the judgment and order denying motion for a new trial, the April General Term reversed the judgment and order appealed from, and ordered a new trial, on the ground that at the close of the trial defendant’s motion for a dismissal of the complaint upon the whole evidence should have been granted.

Plaintiff now moves for a reargument on the sole ground that since that decision the Court of Appeals, as he claims, has decided in the case of the J. Bussell Manufacturing Company r>. The New Haven Steamboat Company, that upon a state of facts very similar to that presented by the evidence in this case, the question] of negligence was for the jury, and that he believes that if this adjudication had been brought to the notice of the General Term of this court, the judgment would have been affirmed.

An examination of the two cases discloses, however, that the claim is not well founded. In the case at bar, which is an action to recover from the defendant, a warehouseman, for the loss of merchandise, the General Term rigidly adhered to the rule that the burden of proof rested upon the defendant to explain and account for the loss. But at the same time it was held that the testimony given on the part of the defence, which it is not necessary to give in detail here, not only, fully and satisfactorily explained the manner of the loss, but that it also clearly demonstrated that defendant did not in any wise contribute by any neglect or want of precaution on Ms part. It was held that this evidence, which was uncontradicted and unimpeached, was so convincing, that in the absence of all proof on plaintiff’s side from which negligence could be inferred, the jury was not at liberty to adopt any other theory, and that consequently the case should not have been submitted to the jury at all, against the objection and exception of the defendant.

In Russell v. the New Haven Steamboat Company, on the other hand, the evidence adduced by the defendant was neither convincing nor otherwise satisfactory. The fire had not been commuMcated to defendant’ s wharf from without, but had broken out on defendant’s own premises.

Plaintiff gave evidence of defendant’s negligence, and such evidence, though slight, was held sufficient to make it the duty of the defendant, although liable as warehouseman only, to explain the circumstances of the destruction of the property. Defendant failed to give such explanation, and omitted to produce any of the persons said to have been left in charge, or to show that any efforts were made by these persons to save the property. From these suspicious circumstances, the jury in that case might well have drawn inferences unfavorable to the defendant, and it was for this reason that the withdrawal of the case from the consideration of the jury was held to have been erroneous.

The two cases are not analogous.

The motion for a reargument must be denied, with costs-

0trims and Van Voest, JJ., concurred.  