Conklin v. Cooper ( 1887 )

Pratt, J.

We do not think the evidence sustains the finding that the tenant was responsible for the entire loss-of four cows. If they died from natural causes, without the tenant’s fault, the loss would fall upon the landlord. The burden of proof is upon the plaintiff. We do not think he meets the requirement.

The judgment should be modified by striking out sixty dollars allowed as value of two lost cows.

In other respects we do. not feel called upon to interfere with the judgment. The testimony was very conflicting and the trial judge saw the witnesses. The testimony of the numerous witnesses that plaintiff offered fifty dollars-to William. Carroll, to take his brother’s place, is as consistent with a project of a sub-lease as with any other theory.

A sub-lease would not discharge the surety.

As modified by striking out the sixty dollars allowed for two of the cows, the judgment should be affirmed, without costs of appeal.

Dykman, J., concurs; Barnard, P. J., not sitting.