
    (57 Misc. Rep. 552.)
    PATRISKA v. KRONK.
    (Montgomery County Court.
    January, 1908.)
    1. Money Loaned—Evidence.
    In an action to recover money alleged to have been loaned to defendant, evidence held to sustain a judgment for plaintiff.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 35, Money Lent, § 13.]
    2. Bailment—Gratuitous Bailee—Liabilities.
    Where plaintiff gave money to defendant to keep for him, it constituted a bailment, and on loss of the money defendant would be liable to restore it only in case of gross negligence on his part.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 6, Bailment, §§ 37, 38.]
    3. Same—Cake Required—Burden of Proof.
    On loss of money by a gratuitous bailee, the burden of showing the circumstances of the loss rests on him; and, unless the evidence shows exercise of due care, he is responsible for the breach of his contract to return the property bailed.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 8, Bailment, §§ 124, 125.]
    4. Same—Negligence.
    Where a bailee of money alleges that it was stolen from him, the fact that other money belonging to defendant was stolen at the same time is not conclusive against the allegation of gross negligence.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 6, Bailment, § 131.]
    
      Appeal from Justice Court.
    Action by Rudolph Patriska against Andrew Kronk. From a judgment for plaintiff before a justice, defendant appeals. Affirmed.
    Christopher J. Heffernan, for appellant.
    George C. Stewart, for respondent.
   MOORE, J.

This is an appeal by the defendant from a judgment for $70 and costs, rendered against him in favor of plaintiff upon the verdict of a jury. It would appear from the return that the evidence of the plaintiff, if not that of all of the witnesses, was taken through the intervention of an interpreter. The action was brought for money alleged to have been loaned by plaintiff to defendant. The answer was a general denial.

Plaintiff testified that he went to board with defendant; that he had $80, and asked defendant where there was a bank to put the' money in; that defendant said, “Let me have it and I will pay you back when you want it;” that he let the defendant have it; that, on the following Monday, he asked the defendant’s wife for $10 of his money, and she got it for him; that he did not know where they kept the money; that, when he asked the defendant for the balance ($70), defendant said that some one had stolen it, with other money ($100) of defendants. This was substantially all of the evidence introduced by plaintiff. Defendant’s motion for nonsuit and for dismissal of complaint was denied. Defendant claimed, and introduced evidence to the effect, that plaintiff- wished defendant to keep the money for him; that defendant did not wish to do so, but, after suggesting that the plaintiff put it in the bank, said that his wife would keep the money for him; that plaintiff handed the money to the defendant, and defendant gave it to his wife to put away; that his wife took the money and put it in a bedtick in her room. On the following Monday she gave plaintiff $10 of the money, and on the next day the balance was stolen, together with $100 of defendant’s money.

The contention of the plaintiff is that the transaction was a loan by the plaintiff to the defendant. The contention of the defendant is that the defendant was simply a custodian of the plaintiff’s money, a gratuitous bailee, and that there was no such negligence on his.part as would render him liable to the plaintiff for the loss of the money. The jury found in favor of the plaintiff, whether on the theory that the plaintiff loaned the money to the defendant, or on the theory that the transaction constituted a bailment and that the defendant was guilty of the degree of negligence which would render him liable, it is not possible to say. If the judgment rendered upon the verdict can be sustained upon either theory, it should be affirmed.

The evidence of the plaintiff as to what was said and done when he gave the defendant the money, if believed by the jury, justified their verdict upon the theory that the transaction constituted a loan. The fact that the plaintiff afterwards referred to the money as “my money” need not necessarily be considered as an admission on his part that he considered the transaction a bailment, and not a loan. If the transaction constituted a bailment, the defendant was a gratuitous bailee, and upon loss of the money would be liable to restore the amount to the plaintiff only in case of gross negligence upon his part. It necessarily follows, from the nature of the obligation and the refusal to return the property, that the burden of showing the circumstances of the loss rests upon the bailee; and, unless the evidence shows the exercise of due care by him according to the nature of the bailment, he will be held responsible for the breach of his contract to return the property bailed. Ouderkirk v. C. N. Bank, 119 N. Y. 263, 267, 23 N. E. 875; Isham v. Post, 141 N. Y. 100, 106, 35 N. E. 1084, 23 L. R. A. 90, 38 Am. St. Rep. 766.

The defendant undertakes to overcome this burden by showing that a boarder in his house disappeared about this time; that the money in question and $100 of his own money was-gone; and then he invokes the principle that, having shown that the money was lost through crime, it becomes necessary for the plaintiff to prove gross negligence on the part of the bailee. Kaiser v. Latimer, 40 App. Div. 149, 57 N. Y. Supp. 833; Claflin v. Meyer, 75 N. Y. 260, 31 Am. Rep. 467. The facts in relation to the loss of this money, as recited by the defendant and his wife, are not very complete or satisfactory. Perhaps the jury did not believe them to be true. But, even assuming that they gave full credence to this testimony, the question as to whether the defendant was guilty of that degree of negligence which would render him liable was one for the jury; and, they having found against the defendant, it cannot be said, in view of all the circumstances, that they were not warranted in doing so. The jury may have found that it was grossly negligent to keep the money in a bedtick under the circumstances; and the fact that, as defendant claimed, other money belonging to him was stolen at the same time, is not conclusive against the allegation of gross negligence. Pattison v. Syracuse Nat. Bank, 80 N. Y. 99, 36 Am. Rep. 582.

The judgment should be affirmed, with costs to the respondent.

Judgment affirmed, with costs.  