
    Raffaele Nicoletti, Appellant, v. Frederich H. Dieckmann, Respondent.
    (Supreme Court, Appellate Term, First Department,
    February, 1915.)
    Negligence — in action to recover value of horse and harness' alleged to have been lost through defendant’s negligence — when plaintiff establishes prima facie case of want of ordinary care — evidence.
    Where in an action to recover the value of a horse and harness alleged to have been lost through the negligence of defendant plaintiff testifies that, paying therefor, he kept the horse and harness in defendant’s stable, which contained about thirty stalls, on his assurance that the horse would be safe there; that he put the horse in a stall early in the morning, fed him in the evening and went home; that on his return next morning the horse and harness were missing, and upon awakening defendant’s watchman who was asleep in bed asked him what had become of his horse and the watchman said he did not know anything about it and had not seen it, plaintiff establishes a prima facie case of want of ordinary care which requires an explanation from defendant; it also established affirmatively the negligence of defendant, it being a fair inference from the testimony that the watchman was in defendant’s employ.
    The rule as to the exclusion of leading questions should be relaxed when it is apparent that a witness, who is an illiterate foreigner testifying through an ■ interpreter, cannot be made to answer a question without being led.
    Appeal from a judgment of Municipal Court, borough of Manhattan, first district, dismissing the plaintiff’s complaint at the close of plaintiff’s case after a trial before the court without a jury.
    Palmieri & Wechsler (Samuel Wechsler, of counsel), for appellant.
    Theodore P. Nanz (Andrew F. Murray, of counsel), for respondent.
   Gavegan, J.

The action was brought to recover $335, the value of plaintiff’s horse and harness, alleged to have been lost through the negligence of the defendant. The plaintiff kept his horse and harness in a stall of the defendant’s stable, paying the defendant $5 a month on his assurance that the horse would be safe there. The stable contained thirty stalls. The plaintiff himself- fed and cleaned the horse, took him out early in the morning to deliver ice and brought him back at night. At nine o’clock a. m. on Sunday, August 30,1914, the plaintiff returned the horse to the stall. He came back at seven o’clock in the evening, fed the horse and then went home. He returned at three o’clock the following morning, to take the horse out, but found that the horse and harness were missing-. He found the defendant’s watchman asleep in bed and asked him what had become of his hors-e. The watchman said that he did not know anything about it, and had not seen it. Upon this testimony the defendant moved to dismiss the complaint on the ground that the plaintiff had not established any negligence and the court granted the motion.

I think the plaintiff’s evidence at least made out a prima facie case of a want of ordinary care which required an explanation from the defendant. In fact, the plaintiff’s proof established affirmatively the negligence of the defendant, it being a fair inference from the evidence that the watchman who was found asleep by the plaintiff was in the employ of the defendant. Swan v. Brown, 72 Am. Dec. 568.

I am also of the opinion that the trial court erred in excluding questions asked by plaintiff’s counsel regarding a conversation between the parties when plaintiff brought his horse to defendant’s stable. This conversation, if allowed, would have presumably defined the agreement between the parties. The only objection raised to the questions was that they were leading. Plaintiff evidently could command sufficient English to enable him to make an agreement in that language with the' defendant with regard to the stabling of his horse, but it was necessary for him to testify through an interpreter at the trial. Such instances frequently come under the observation of the court without arousing suspicion as to the witness’ veracity. This court has held that in the interests of justice strict rulings should be relaxed when it becomes apparent that a witness who is an illiterate foreigner, testifying through an interpreter, cannot be made to answer a question without being led. Strand v. William Messer Co., 142 N. Y. Supp. 314.

The judgment appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.

Bijur, J., concurs; Guy, J., concurring in result.

Judgment reversed and new trial granted, with costs to appellant to abide event.  