
    THE CITY OF BOSTON, MASS., FOR ITSELF AND IN PART FOR THE USE AND BENEFIT OF NATIONAL SURETY CORPORATION, AND NATIONAL SURETY CORPORATION, v. THE UNITED STATES
    [No. 46089.
    Decided March 4, 1946]
    
      Messrs. Paul Windels and WilUam A. McDermott for the plaintiffs. Mr. James W. Kelleher was on the briefs.
    
      
      Mr. D. B. MacGuineas, with whom was Attorney General John F. Sonnett, for the defendant.
   Whitaker, Judge,

delivered the opinion of the court:

All the pertinent facts in this case are the same as in the case of The City of New York, et al. v. United States, No. 46085, this day decided, except that as to one of the burglaries in this case we have found that the City was negligent. This was the burglary at 25 Blossom Street.

The district office for the distribution of the food stamp books located at this place was in a basement room. In this room there was a steel-bar cage entered by a door with a snap lock. Within the cage was a counter, underneath which was a wooden cash drawer, which had a lock similar to the lock on a desk drawer. It could be forced open with but little pressure. In this drawer the stamps were kept.

On the day of the robbery, the cashier put the stamps in the drawer and locked it and locked the cage, but not the door to the room. All the employees then left for lunch leaving the room unguarded. While they were gone the place was robbed.

This makes out a clear case of negligence.

The parties agree that if the stamps were lost as a result of negligence the City is liable. The amount of the blue stamps so lost was $1,272.50. This amount was properly deducted from the sum of $10,295.00, the amount of the orange stamps turned in for redemption. It was improper to deduct the balance for the reasons stated in The City of New York, et al. v. United States, supra, the other blue stamps having been lost through no fault of the City.

Plaintiff National Surety Corporation, which paid the City for the orange colored stamps which were stolen, is not entitled to recover, and the petition as to it is dismissed.

The amount improperly deducted for the value of the blue stamps which were stolen was $9,022.50. Judgment for this amount will be rendered in favor of the City against the defendant. Defendant’s counterclaim will be dismissed. It is so ordered.

Jokes, Judge; LiitletoN, Judge; and Whaley, Chief Justice, concur.

MaddeN, Judge, took no part in the decision of this case.  