#### Charles F. Harms, Plaintiff-Appellant, *v.*The City of New York, Defendant-Respondent.

(Supreme Court, Appellate Term,

November, 1910.)

Bailment: Hiring of chattels and bailments for mutual benefit: Evidence and presumptions — Sufficiency of evidence.

Where a bailee for hire returns the property damaged, the bailor may elect either to sue for the damages occasioned by the bailee’s negligence, or, waiving the tort, may bring an action for breach of the contract of bailment.

Where the bailor elects to bring his action for the breach of the implied agreement to return the property in as good condition as when received, reasonable wear and tear excepted, it is unnecessary to either allege or prove negligence.

The plaintiff makes out a *prima facie*case when he has shown the hiring and delivery of the property to the defendant in good condition, its return in bad condition and the amount necessarily expended to put it in good condition.

Where a scow rented by plaintiff to the city of New York was damaged as a result of the negligence of the city and plaintiff brings an action upon the contract of bailment, the provision of section 261 of the Greater New York charter, which is limited in terms to actions for damages for injuries to personal property or its destruction, through negligence, does not apply; and it is error to vacate a judgment in plaintiff’s favor upon the ground that the time limit contained in said section for bringing an action was applicable.

Appeal from an order of the Municipal Court of the city . of New York, borough of Manhattan, first district, setting aside and vacating the judgment entered upon the trial in favor of the plaintiff and .granting a new trial, upon exceptions.

Foley, Martin & Nelson (William J. Martin and Frank A. Spencer, Jr., of counsel), for appellant.

Archibald R. Watson (Theodore Connoly, Loyal Leale and M. J. Kelly, of counsel), for respondent.

*316Page, J.

Tho defendant hired a scow, in good'condition, from the plaintiff, at the rate of five dollars per day and, on or about the 25th day of January, 1908, returned the boat in a damaged condition. The boat was twisted, its seams open, its planks damaged and it was leaking. A survey was made by two persons, one representing the plaintiff, and the other the defendant. They agreed on the repairs necessary and the cost thereof. The repairs were made and the boat was returned to the city. Plaintiff sues for the cost of the repairs, the cost of the survey and loss of earnings for six days. The pleadings were written. The complaint was for a breach of the contract of hiring. The answer denied any knowledge or information sufficient to form a belief as to the material allegations of the complaint and set forth as defense “ that the cause of action 'has not accrued within one year prior to the commencement of said action.” Upon the trial witnesses were examined on behalf of both parties and judgment was given for plaintiff for, the full amount claimed. A motion was made to set aside the judgment. upon the exceptions, which motion was granted.

The exceptions upon which defendant relies were those taken to the denial of the motion to dismiss, made at the conclusion of the plaintiff’s case and renewed at the close of the entire case. The most serious of these is that the action, not having been brought within one year after the cause of action accrued, is barred by section 261 of the Greater New York charter which, so far as applicable, is ' as follows: *“** * * and in the case of claims against said city, accruing after the passage of this act, for, damages for injuries to personal property or the destruction thereof, alleged to have .been sustained by reason of-the negligence of * * * said city or any department * * * thereof no action thereon shall be maintained against said city, unless such action shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of intention to commence such action and of tho time when and place where the damages were incurred or sustained, together with a verified statement showing in *317detail the property alleged to have been damaged or destroyed and the value thereof, shall have been filed with the comptroller of said city within six months after such cause of action shall have accrued.” It is conceded that the action was not commenced within a year, and that the notice last provided for by said section was not filed. If, therefore, this action is to enforce a claim for damages for injuries to personal property, alleged to have been sustained by reason of negligence, it is barred. When a bailee for hire returns the property, damaged, two causes of action exist in favor of the bailor; in tort, for the damages occasioned by the bailee’s negligence; or, waiving the tort, for breach of the contract of bailment. As between these causes of action he has the right of election.

In the case at bar the plaintiff elected to bring his action upon the contract. ' Negligence is not a necessary element, and was neither alleged nor proved by the plaintiff. The gravamen of the action is the breach of the implied agreement to return the property in as good condition as when received, reasonable wear and tear excepted. And plaintiff proved his *prima facie*case when he showed the hiring, the delivery of the boat to the defendant in good condition, its return in bad condition and the amount necessarily expended to put it in good condition. The defendant argues that, because it sought to prove by way of defense that the injuries were the result of its negligence, to which the negligence of the servant of the plaintiff contributed, the action thereby became an action for damages to personal property by reason of negligence, forgetting that the plaintiff makes the election; and we find his choice in his, complaint and in the evidence offered by him and not by the defendant’s pleadings or evidence. Had the plaintiff brought his action in tort, then it would have been necessary for him to prove negligence, and the numerous cases cited by respondent on the burden of proof and degree of care would be applicable, and the limitation of one year, under section 261, would apply.- Where a plaintiff has two causes of action, one in tort and the other on contract, and has elected to bring his action on the contract, the " *tort feasor*cannot allege his own *318wrong for the purpose of defeating an .action upon the contract. In Angelí on Limitations (5th ed., § 72) it is said ‘ An action of assumpsit may not bé barred by the statute, when, to an action for a tort upon the same demand, the statute may he pleaded.’ ” Ganley v. Troy City Nat. Bank, 98 N. Y. 487, 494.

Section 261 being limited by its terms to actions for damages for injuries to personal property or the destruction thereof, alleged to have been sustained by reason of negligence, does not apply to the cause of action set forth in the complaint herein. And the learned justice below erred in vacating the judgment on the ground that the limitation contained in section 261 was applicable, which was the sole ground stated in his opinion.

The order should be reversed and the judgment reinstated, with costs to appellant in this court and in the court below.

Seabury and Bijur, JJ., concur.

Order reversed and judgment reinstated.