Leonhard Selesky, Respondent, v. Henry Vollmer, Appellant

Leonhard Selesky, Respondent, v. Henry Vollmer, Appellant. Sire of' horse—its death from acute colic while in the possession of the bailee — action by the owner to recover its value—proof that it received proper care rests on the bailee. Where a horse, hired for use in performing a particular task, is received by the bailee from the bailor in good condition, but dies from acute colic while in the possession of the bailee, it is incumbent upon the bailee, in an action brought ' against him by the bailor to recover the value of the horse, to show that the horse while in his possession received proper care. Appeal by the defendant, Henry Vollmer, from a judgm.ent of the County Court of Kings county in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 18th day of October, 1904, upon the verdict of a jury for $150. Jacob H. Denenholz and Edward R. Vollmer, for the appellant. H. Willard Griffiths and F. H. Kellogg, for the respondent. [MAJORITY — Hirschberg, P. J.:] Hirschberg, P. J.: The defendant hired a horse from the plaintiff for use in drawing a tombstone a distance of some thirteen miles. The horse was in good condition at the time he was received by the defendant’s driver, but died from acute colic which developed, during the day ' and while he was engaged at the work for which he was hired.' There was some evidence that the driver was intoxicated, and he was not called as a witness. There was also a conflict of evidence upon the question whether the disease was produced by fermentation of food or by exhaustion from overwork. This question was submitted to the jury under proper instructions, and the verdict of the jury is a finding that the death of the animal was occasioned by misuse. The appeal is. from the judgment only and we accordingly limit our review to the exceptions. The exceptions taken to the admission Or rejection of evidence do not justify interference with the result. But the learned counsel for the appellant insist that the court erred in charging the jury that the burden was on the defendant to show that the horse while in his possession received proper care. Ho exception was taken to the charge in this or in any other respect, nor was the question raised .in' any manner upon the trial. But the rule laid down by the court appears to be in accord with the decisions in this State to the effect that the burden of proof rests with the bailee for hire to show that an injury which does not ordinarily occur was not occasioned by his negligence where the property is exclusively in his possession. (Collins v. Bennett, 46 N. Y. 490 ; Ouderkirk v. C. N. Bank, 119 id. 263; Rutherford v. Krause, 55 App. Div. 210; Snell v. Cornwell, 93 id.-136.) The judgment should be affirmed. Present — Hirschberg, P. J., Bartlett, Woodward, Rich and Miller, JJ. Judgment of County Court of Kings county unanimously affirmed, with costs.