Blunt v. Barrett
| Decision Date | 14 January 1891 |
| Citation | 26 N.E. 318,124 N.Y. 117 |
| Parties | BLUNT v. BARRETT. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from superior court of New York city, general term.
James A. Briggs, for appellant.
Charles Blandy, for respondent.
The action was brought for an alleged wrongful taking by the defendant of the plaintiff's yacht from a certain place where she had been laid up for the winter, to another place in East river, where she sunk and was greatly damaged. The question here arises upon the plaintiff's exception taken to the charge of the court to the jury, that ‘the burden of proof is upon the plaintiff, and he must establish, by a preponderance of evidence, that the removal of the vessel was without authority, and without color of authority.’ This calls attention to the issue presented by the pleadings, by which it appears that the plaintiff alleged his title to the yacht at the time in question, and charged that the defendant wrongfully took her from the Knickerbocker Club grounds at Port Morris, in the county of Westchester, to the foot of East 119th street, in the city of New York, and there attached the yacht to a buoy, where she was subjected to the rising and falling of the tide, and exposed to danger, and that the yacht sunk and was injured. The defendant, by his answer, admitted the plaintiff's title, and that he (defendant) took the yacht from and to the places mentioned in the complaint, and that she sunk; denied that he wrongfully took the vessel there; and alleged that he had the right and it was his duty towards the plaintiff, as the custodian of her, to remove the yacht to some safe and convenient place, and that he removed her from the place first mentioned to the foot of East 119th street, where he had no reason to apprehend any harm to the vessel. It must be assumed, under our system of pleading, that the plaintiff took issue upon those allegations justifying the taking, and therefore the affirmative of such issue was with the defendant. The burden was with the defendant to establish this affirmative defense of justification of the taking so alleged by him, and it was error for the court to charge the jury that the burden to prove the contrary was with the plaintiff. Heinemann v. Heard, 62 N. Y. 448. When the defendant admitted the taking and the plaintiff's title, his defense was dependent upon some right, by way of justification, to take and remove the yacht, and that was essentially matter to be pleaded...
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...limitation was in effect on this shipment (Farmers' Loan & Trust Co. v. Siefke, 144 N.Y. 354, 360, 39 N.E. 358, 359; Blunt v. Barrett, 124 N.Y. 117, 119, 26 N.E. 318, 319; Moncel Realty Corp. v. Whitestone Farms, 188 Misc. 431, 433, 68 N.Y.S.2d 673, 675, affd. 272 App.Div. 899, 72 N.Y.S.2d ......
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