Holden v. Friedman

Per Curiam.

This is an appeal from a judgment in favor of the plaintiff rendered by the trial judge sitting without a jury, in the District Court of the city of Paterson.

Bertha Holden, the plaintiff below, left her fur coa-t at the store of the defendant for repairs and storing. The store was entered by thieves, and when the plaintiff inquired for her coat she was told it had been stolen. She brought suit and recovered a judgment.

The premises of the defendant are on the first floor of the building. He had a safe there in which he placed furs and coats. After the robbery the furs and coats in the safe were secure. Defendant’s explanation, and sole explanation, appears in the testimony of the plaintiff, which was, among other things, as follows:

“I was called up and told that Mr. Friedman’s store was robbed and my sister and I went down to see Mr. Friedman about it, and he said he had been working on my coat until three o’clock in the morning, and had not quite finished it, and lor that reason lie did not put it back in the safe, and for that reason it was stolen, and if he had put it back in the safe it would not have been stolen.”

The explanation, and the only explanation, that he made to Mr. Irolden, according to the latter’s testimony, was as follows: “He said ho was very unlucky; that he was working with the coat very late at night and expected to start on it very early in the morning, and he didn’t think it was worth while putting it in the safe, hut if he had put it in the safe Mrs. Holden would have had her coat.”

The duty of the defendant was to exercise reasonable care in respect to the coat. The trial judge found, in effect, that the defendant had not exercised reasonable care, and the foregoing testimony, considered in connection with the admitted fads, justifies that finding.

The contention of the defendant at the trial was that he failed to put the coat hack in the safe, because during repairs it was wet, and that it is not proper practice to put a wet coat in a safe, and it was upon this ground that he urged at the trial that judgment should be rendered for him. But the trial judge thought otherwise and rendered judgment for the plaintiff, and we cannot say that was wrong. Lie may have disbelieved tire defendant’s claim, made for the first time at the trial, that the coat was wet, or he may have concluded that, in the circumstances, wet or dry, the leaving of the coat outside the safe, without other precautions, was not reasonable care.

Our conclusion is that the question, whether or not the defendant was negligent, was a jury question, and the finding of the trial judge, sitting as a jury, will not he disturbed.

The judgment is affirmed, with costs.