Creager v. McGowan , 104 N.Y.S. 416 ( 1907 )

BRADY, J.

The plaintiffs failed to sustain the burden of proof. Defendant and his driver swear that the boxes were in good condition when delivered at the plaintiffs’ apartment house. The receipt signed for them by the superintendent shows that they were in good order. They were placed in a basement, where they could have been tampered with by strangers, and remained there for two weeks. They remained in the custody of plaintiffs after delivery for a week before being urn-packed. The plaintiffs have not shown by a fair preponderance of evidence that the goods were missing from the boxes when the defendant delivered them at No. 301 St. Nicholas avenue.

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