
    Matilda R. Kelemen, Plaintiff, v. American Locker Company, Inc., Defendant.
    City Court of New York, Trial Term, New York County,
    February 25, 1944.
    
      Richard J. Mackey for plaintiff.
    
      Joseph Dannenberg for defendant.
   Parella, J.

Plaintiff seeks to recover damages for loss of baggage alleged to have been checked by her, assisted by a redcap, in a certain locker maintained and controlled by the defendant, located at the Pennsylvania Railroad Station in the borough of Manhattan.

The evidence shows that the redcap assisted by physically placing the baggage in the locker; inserted the coin given to him by plaintiff necessary to operate said locker; then removed the key from locker and gave it to plaintiff; and that it was tested by her and found to be locked. Upon her return she inserted the key in lock and opened it, when she discovered that it was empty.

The record is barren of any evidence to show that the locker was in any wise tampered with.

This is an unfortunate incident which, under the circumstances, does not permit any redress to plaintiff. The plaintiff having failed to sustain the burden of proof by a fair preponderance of the evidence concerning defendant’s negligence and her own freedom from contributory negligence, I am, therefore, constrained to find judgment in favor of the defendant against the plaintiff herein. .

Counsel having waived findings of fact and conclusions of law, the Clerk may enter judgment accordingly. All motions upon which decision was reserved and not hereby otherwise disposed of are denied. Five days’ stay of execution of judgment, thirty days to make and serve a case.  