Arkush v. Citron
| Decision Date | 05 December 1958 |
| Citation | 180 N.Y.S.2d 514,14 Misc.2d 707 |
| Parties | Rachel ARKUSH, Plaintiff, v. Jules CITRON and St. Paul Fire & Marine Insurance Company, Defendants. |
| Court | New York City Municipal Court |
Joseph Haskell, New York City (Emmet L. Holbrook, New York City, of counsel), for plaintiff.
Rein, Mound & Cotton, New York City (Eugene Wollan, New York City, of counsel), for defendants.
This action was tried before the court without a jury. Plaintiff seeks to recover $1,100 from defendant Citron for his failure to return a mink stole delivered to him for storage. She also seeks to hold the defendant insurance company for this loss under a Furrier's Customers policy issued to Citron. The complaint was amended at the trial to include a cause of action in conversion against Citron. That cause of action is hereby dismissed for failure of proof by reason of plaintiff's default in complying with a conditional order of preclusion.
Aside from a general denial, Citron sets up a partial defense of a $100 limitation of liability in the storage receipt, and the insurance company sets up a partial defense of a limitation of liability in its policy to the amount stipulated in that receipt.
The issues relate to whether there is any liability for the loss, and, if so, the extent thereof by the respective defendants.
About May 15, 1957, plaintiff rceived the stole as a gift, and on May 17th the same was appraised at $1,250. After she had worn the stole once or twice her husband, Jack Arkush, delivered the same for storage on July 17th to Citron, who was in the business of fur designing, repairs and storage.
After receiving an affirmative response to his inquiry as to whether the stole was insured, Citron issued his signed receipt, of which more later. The same born on its face Citron's handwritten figures of $100 in a column headed 'Depositor's valuation, stipulated to be furrier's limit of liability, irrespective of value,' and $5 in an adjoining column headed which charge Arkush thereupon paid. There is some dispute as to the accompanying conversation. Arkush testified that he merely glanced at both sides of the receipt and noticed the $100 figure, without being advised or conscious of its significance. Citron testified that he mentioned the valuation, as well as the charge, to Arkush. At any rate, Citron admittedly did not call the attention of Arkush to any of other provisions of the receipt, and the latter admittedly did not read or examine the same then or thereafter.
That same day Citron, whose premises were on the eighth floor of 352 Seventh Avenue, Manhattan, placed the stole in the vault of a friend in the building for safekeeping overnight because of the absence of a vault or any means of safeguarding garments in his own premises. The door to his premises, which opened into the public hallway, was equipped with two locks, one a snap lock and the other requiring the manual use of a key to be locked from the outside. Citron testified that only he had the keys. No testimony was adduced as to whether the building provided its tenants with the customary cleaning service at night, entailing the use of passkeys by its employees. Two windows in the rear of the premises were equipped with common garden variety center locks, but had no blinds or bars, and there was a fire escape about five feet from the further side of one widow. The premises were not provided with an alarm system nor were the same wired or otherwise protected against entry, except as above described.
The following afternoon, July 18th, Citron returned the stole to his own premises and put the same on a table preparatory to pinning a ticket thereon for storage in a warehouse. This table was set length-wise against the rear wall between the two windows and extended fully or partly under each window. There were no other furs in the premises and Citron was alone at the time. Citron testified that he was suddenly seized with stomach cramps, shut the snap lock on the door and went to the men's lavatory two doors down the hall, leaving the other door lock open and the windows unlocked and open from the top about three-quarters down; and that the condition of the windows was such that the upper windows jammed and could not be lowered further. He returned in five or ten minutes and the stole was gone. The windows were still in the same position and he could discover no marks of entry on the door or windows. He notified Arkush of the loss on the same day, and on July 24th reported to the defendant insurance company that the garment had been stolen. Plaintiff received $1,100 in settlement from her own carrier and this action is in the nature of subrogation.
Citron was a bailee for hire and had the obligation of due care. While the burden of proving negligence may rest upon plaintiff, the failure of the bailee to return the subject property establishes negligence prima facie and requires an exonerating explanation from the bailee. Upon this principle the parties and the numerous authorities cited by them agree (e. g., Fidelity and Guaranty Insurance Corporation v. Ballon, 280 App.Div. 373, 113 N.Y.S.2d 546; Claflin v. Meyer, 75 N.Y. 260).
Defendants assert that the mere disappearance of the article from Citron's locked premises presupposes a theft, thereby satisfying his burden of explanation and restoring to plaintiff the full burden of proof of negligence. This, however, is dependent upon the preliminary adequacy of Citron's explanation. In Fidelity and Guaranty Insurance Corporation v. Ballon, 280 App.Div., 373, 113 N.Y.S.2d 546, the Appellate Division of this department, upon abundant authority, held:
(280 App.Div. at page 376, 113 N.Y.S.2d at page 549).
The necessary extent of this explanation was defined by Cardozo, J., in Honig v. Riley, 244 N.Y. 105, 110, 155 N.E. 65, 67:
Assuming Citron's credibility, the court finds him guilty of negligence in leaving no more than a snap lock between his valuable garment and a felon, and in failing to apply the window and manual door locks against intrusion. In the absence of any recognized safeguards on his premises for articles of such value, of which he was aware when he previously placed the stole in the vault of another for safekeeping, it was his duty to utilize all the limited means with which his premises were equipped before leaving the garment unattended. And, if the exigencies of his physical condition did not allow him the time to do so, he had the alternative duty and opportunity of taking this easily portable article with him when he left the premises.
Actually, Citron's explanation lacks credibility. That the windows of his premises, which were without cross-ventilation, were in such a state that the same could not be fully opened in mid-summer, and that some prescient intruder anticipated this isolated moment to abstract this sole article of value from the premises would challenge the most credulous. The court is reluctantly constrained to express its disbelief in Citron's testimony.
We therefore proceed to a determination of the issues raised by the limitations of liability asserted by the defendants. The receipt issued by Citron is prominently captioned on its face and reverse sides as a 'STORAGE AND SERVICE AGREEMENT.' It is then introduced on its face by the boldly capitalized legend:
This is followed by five vertical columns respectively headed as follows:
'DESCRIPTION OF ARTICLE
'CONDITION (Not noted unless described below)
'Depositor's valuation, stipulated to be furrier's limit of liability irrespective of actual value
'STORAGE AND SERVICE CHARGES Charges are based on value declared'
Be it noted that the portions of these headings in lower case are in fine print. In the lower right corner above Citron's signature appears the following in fine print: 'Our liability for loss or damage from any cause whatsoever, including our own negligence or that of employees and others, is limited to the declared valuation as it appears in the valuation column.'
In the lower left is a breakdown of the charges in prominent italics as follows:
"Repairing or Remodeling
Cleaning & Glazing
Storage Charge $5.00
Total charges $5.00"
In the extreme lower left corner appears a prominent figure in the form of a seal bearing the boldly capitalized words, 'STORAGE AGREEMENT RECEIPT.' In the upper left corner there appears in fine print a requirement, in substance, that the depositor notify the furrier of any objections within ten days. This provision is academic, since the loss occurred the day after the issuance of the receipt.
It may be difficult to convey or visualize the face of this instrument by description. To the lay eye the same would represent a receipt, conspicuously featured as such. By contrast, all...
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