#### Harry B. Thorn, Appellant, *v.*Isidor Straus and Nathan Straus, Doing Business Under the Name of R. H. Macy *&*Company, Respondents.

(Supreme Court, Appellate Term, First Department,

November, 1912.)

Bailment — failure to return negatives subject of — presumption of negligence — evidence.

Where plaintiff delivered to defendant certain photographic negatives upon its agreement to return them with the prints to be made therefrom within a few days after delivery, proof of the non-return of the negatives on demand is evidence of defendant’s failure to exercise ordinary care in the circumstances; and in an action for breach of contract to return the negatives plaintiff is entitled to recover.

The presumption of negligence which arose from defendant’s failure to return the negatives was not overcome by the "fact that *140the system in operation in his store under which such articles were usually cared for was similar to that in use in other large department stores in the city of New York, for if the system had been followed the negatives would have been returned to plaintiff.

The failure to return the negatives was *prima facie*evidence that defendant through negligence did not pursue the system which it had adopted.

Appeal by plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, seventh district, rendered in favor of the defendants after a trial before the court without a jury.

Ernest W. Wyatt, for appellant.

Wise & Seligsberg (Isaac Laude, of counsel), for respondents.

Seabury, J.

This action is brought for a breach of a bailee’s contract to return goods delivered to it by the plaintiff. The proof showed that the plaintiff delivered to the defendants thirty-four photographic films or negatives, for the purpose of having prints made therefrom. The defendants agreed to return the films with the prints within a few days after delivery. When the plaintiff first called and demanded the return of the films and prints, the defendants reported that they were unable to find them, and assured the plaintiff that they would make every effort to find them. A representative of the defendants told the plaintiff that the films had been printed in the laboratory and the price-marked upon them, and returned to the photographic department of the defendants’ store ready for delivery. The defendants offered evidence to show that the films had been sent to the photographic laboratory, prints made and the films returned to the photographic department. The defendants also showed the system in vogue in their store under which such articles were usually cared for, and that they pursued the same system which is in general use in large department stores in the city of Hew York. Upon this *141proof, the learned court below awarded judgment in favor of the defendants. We are of the opinion that upon this evidence plaintiff was entitled to recover. The law required the defendants to return all the property intact, or to explain its loss in some satisfactory way, hut they did neither. Hasbrouck v. N. Y. C. & H. R. R. R. Co., 202 N. Y. 363, 374. It is quite true, as urged by respondents, that the burden was upon the plaintiff to establish by a preponderance of evidence that the loss of the articles was due solely to the negligence of the defendants. Claflin v. Meyer, 75 N. Y. 260. We think that the plaintiff fully sustained this burden. Plaintiff proved the delivery of the films, and the failure of the defendants to return them upon demand. The failure to return the films was evidence of the failure on the part of the defendants to exercise ordinary care under the circumstances. The fact that the system in operation in defendants’ store was similar to that in use in other large department stores in Yew York city was not sufficient to overcome the presumption of negligence which arose from the failure of the defendants to return the articles to the plaintiff. If the system adopted had been followed the articles would have been delivered to the plaintiff. The failure so to deliver the goods is *prima, facie*evidence of the fact that the defendants through negligence did not pursue the system that they adopted. The fact that the defendants, after the films were lost, made a careful and exhaustive search for them, is no evidence that the defendants exercised proper care of the films before they were lost. I do not see how it was possible for the plaintiff to prove more than he did, and the presumption which arose from the facts which he proved justified the inference that the defendants were negligent. Where the law presumes negligence, such a presumption takes the place of proof, and, while the presumption is not conclusive, it can only be overcome by evidence of a substantial and persuasive character. The evidence adduced by the defendants, while entitled to consideration and weight, was not, in our judgment, of such a character as to overcome the *prima facie*case established by the plaintiff.

*142The judgment is reversed, and a new trial ordered with costs to the appellant to abide the event.

Guy and Bijdr, JJ., concur.

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