#### Leonard Hoffmann, Appellant, *v.*James B. Coughlin, Respondent.

(Supreme Court, Appellate Term,

January, 1899.)

Bailment — Pledge lost by burglary — Pailure to guard premises.

A bailee, who seeks to excuse the loss of a pledge upon the ground that it was stolen by burglars, must establish his contention with reasonable certainty.

Where the bailor testifies that he examined the premises on the day after the alleged burglary and failed to find any evidence. of a forcible entry, and the bailee admits that his rear door was not closed by a lock but only by a screwdriver passed through two- hasps, and it is left in doubt, whether or not the gate leading to an alleyway in the rear of the premises was permanently closed, the jury, and not the court, must decide whether the bailee has sufficiently excused the loss.

Appeal by the plaintiff from a judgment entered upon the verdict of a jury, and rendered by direction of the justice of the Municipal Court of the city of New Tort, borough of Manhattan, eleventh district. The nature of the action and the material facts are stated in the opinion.

Louis Wendel, Jr., for appellant.

John Jeroloman, for.respondent.

Giegerich, J.

Damages were sought to be recovered in this action for the loss by plaintiff’s assignor of a bicycle left in the custody of defendant for purposes of repair. Absence of negligence and burglarious entry of defendant’s premises were the *25grounds pleaded by the defense and urged in extenuation- of any damages suffered by plaintiff.

At the close of the entire case there were presented by the defendant certain reasons why a verdict should be directed in his favor, namely, failure to either rebut the testimony as to the property having been stolen, or to prove that such theft was committed through any fault, negligence or carelessness on his part, as well as an affirmative establishment by the evidence of the fact that the bicycle had been cared for as though his own personal property and the additional fact that nothing had theretofore caused him to doubt the perfect security of his premises. The plaintiff then asked the court to be permitted to go- to the jury upon the following questions: (1) Whether there was a burglary; (2) whether defendant’s premises were properly guarded and secured, and (3) whether the defendant was not guilty of negligence in having simply closed the door in the manner testified to. Thereupon the court instructed the jury to find a verdict for the defendant, upon the hypothesis that no evidence existed upon which to sustain a finding unfavorable to him, to which plaintiff excepted.

This, we think, was error, for the reason that while the testimony adduced for the defendant tended to show that the asportation of the cycle from his store was by means of a burglarious entry, yet the plaintiff’s assignor testified that on the day following the alleged theft, he, in company with the defendant and the latter’s son, made an examination of the premises, but failed to discover the marks of a jimmy upon the door, or any evidence whatever of a forcible entry. It certainly was incumbent upon the defendant to establish with reasonable certainty the alleged loss from theft. Claflin v. Meyer, 75 N. Y. 260, 263. Obviously, the testimony in this respect was open to opposing inferences by the jury (Linkhauf v. Lombard, 137 N. Y. 417, 420; Jones on Evidence, etc., 171), and to withdraw it from their consideration was without warrant.

Apart from this conflict of testimony, however, another important fact seems to have been overlooked by the justice in his disposition of the case, which was properly within the province of the jury. We refer to certain testimony introduced by the plaintiff from which it might be inferred that the alleged burglary was due to the want of such care as a prudent man would have taken of his property under similar circumstances. Claflin v. Meyer, *supra;*Ouderkirk v. C. N. Bank, 119 N. Y. 263; Stewart v. *26Stone, *127*id. 500, 506; Waterman, v. American Pin Co., 19) Misc. Rep. 638. To particularize, it appears from the defendant’s own testimony that the rear door through which the burglarious entry was effected, was kept closed not by a regular lock, but by means of a screw driver passed through two hasps, while from certain other testimony there is left in dispute the question as to whether the gate leading to the alleyway in the rear of the premises was permanently closed or not.

It was, therefore, error not to send the case to the jury, and the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Beekman, P. J., and Gildersleeve, J., concur.

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