Ullmann v. Fuerth , 269 N.Y.S. 25 ( 1933 )

Per Curiam.

It was error for the trial court to charge that when plaintiff made out a prima facie case the burden of proof was on the defendant to show the disposition of the merchandise •— to show that it had been returned. The action being one by a bailor against a bailee for breach of contract of bailment and the issue tried being whether or not the bailee had returned the goods, the plaintiff (bailor) had the burden of establishing the failure to return.

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

Levy and Callahan, JJ., concur; Lydon, J., dissents.

Lydon, J.