
    Morris S. Herrman, Respondent, v. The New England Navigation Company, Appellant.
    Second Department,
    March 24, 1911.
    "Warehouseman — failure to deliver goods—presumption as to negligence — charge — new trial.
    A presumption of negligence arises where a warehouseman fails on demand to deliver goods stored for the owner, and the warehouseman is called upon to account for his failure to deliver.
    But as the burden of proof in an action to recover the value of goods which a warehouseman has failed to deliver on demand remains on the plaintiff throughout the case, it is not technical error so to charge, and to refuse to charge that the burden rests upon the defendant to prove that reasonable care was exercised by it in seeking to ascertain that the person to whom it delivered the goods had authority from the plaintiff to receive them. However, a verdict for the plaintiff should be set aside and a new trial granted where the charge did not sufficiently state to the jury the nature of the explanation which the defendant was called upon to give to meet the prima facie case of negligence made out bj its failure to deliver the goods on demand.
    Appeal by the defendant, The New England Navigation Company, from an order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of Westchester on the 20th day of July, 1910, setting aside a verdict in favor of the defendant and granting the plaintiff’s motion for a new trial.
    
      I. R. Oeland [Charles M. Sheafe, Jr., with him on the brief], for the appellant.
    
      Thomas A. McKennell, for the respondent.
   Cabe, J.:

The defendant obtained a verdict in its favor at the trial of this action in the Supreme Court in Westchester county. On motion of the plaintiff this verdict was set aside by the trial court and a new trial granted. The order setting aside the verdict recites that it was granted on the exceptions of the plaintiff, thereby excluding any idea that the verdict was against the weight of evidence. An examination of the record shows that the jury might have found properly enough the verdict which they rendered. The whole question now in controversy is whether the jury was instructed properly by the trial court as to the rules of law to be applied by them in determining the issue. The defendant was sued as a warehouseman for the non-delivery of goods owned by the plaintiff and concededly in the possession of the defendant at one time. The complaint alleged that the defendant had delivered these goods negligently to some person who had no authority from the plaintiff to receive them, and the plaintiff thereby sustained a loss. The defendant’s answer consisted of general denials. At the trial the plaintiff gave proofs to show that the defendant had delivered the goods to a truckman who was not authorized by the plaintiff to. receive them, and the truckman did not deliver them to the plaintiff.

The defendant gave proofs showing the delivery of the goods to a truckman once employed by a general truckman, who did the plaintiffs trucking business, on production of a postal card sent by the defendant to the plaintiff containing notice of the arrival of the goods and a request that they should be called for by the plaintiff. This truckman gave up the postal card to the defendant and paid the freight charges in cash and took away the goods. There were some features of this delivery which were claimed by the plaintiff to have been unusual in the customary dealings between the parties and to have called for a greater exercise of care than the defendant showed on that occasion. The plaintiff requested the court to charge the jury as follows: “ I ask your Honor to charge that the burden of proving that reasonable care was exercised by the defendant in seeking to ascertain that the person to whom the goods were delivered had authority from the plaintiff to receive the same rests upon the defendant.” The court replied: £: I do not think that rule applies.' * * * I think that the rule is that the burden of proof rests upon the plaintiff throughout the case; but that the jury may find that the circumstances are such as to cast upon the defendant the duty of explaining.” To this the plaintiff excepted. Subsequently the trial court handed down an opinion in which it said that it had not made sufficiently clear in the main charge that a presumption of negligence arose from the non-delivery of the goods to the plaintiff on his demand. We think the trial court was right in this opinion of its charge. That such a presumption does arise, and that the warehouseman is then called on to account for his failure to deliver is well settled. (Burnell v. New York Central R. R. Co., 45 N. Y. 184; Schwerin v. McKie, 51 id. 180, 186; Bank of Oswego v. Doyle, 91 id. 32, 42.) This duty to account for failure to deliver ■ to the owner does not shift the burden of proof. (Claflin v. Meyer, 75 N. Y. 260, 264.) The refusal of the trial court to charge as requested was correct technically. (Jones v. Union R. Co., 18 App. Div. 267; Kay v. Metropolitan Street R. Co., 163 N. Y. 447, 453; Kaiser v. Latimer, 9 App. Div. 36 )

At the same time, in view of the fact that the trial court nowhere in its chatge explained sufficiently to the jury the nature of the explanation which the defendant was called upon to give to meet the prima facie of negligence, it left the jury unnecessarily in the dark on the crucial point in the case. In view of this fact, the order setting aside the verdict and granting a new trial should he affirmed, with costs.

Jenks, P. J., Burr, Woodward and Rich, JJ., concurred.

Order affirmed, with costs.  