P. H. Gill & Sons Forge & Machine Works v. Detroit-Cadillac Motor Car Co.

Jenks, J.: Plaintiff as bailee received defendant's motor car crank shaft to test it or to straighten it, and during the work, or thereafter, cracks or seams appeared in the shaft. The defendant was notified. Thereupon a new crank shaft, ordered by defendant, was made and delivered by plaintiff. Defendant stopped the check which it had sent to plaintiff in payment for this shaft. In this: action, brought to recover upon the check, defendant counterclaimed, and the court awarded to it damages for the value of the first crank shaft, and for the loss in the matter of the extra time and labor required for assembling the parts to fit the new crank shaft. As these damages are in excess of plaintiff’s claim, defendant gains the judgment.' Even though it were proved to the satisfaction of the court that the crank shaft was cracked by the plaintiff “ in the attempt to straighten the bend or kink found in it,” that fact alone - cannot siipport the judgment. For the judgment must rest upon proof that satisfied the court that plaintiff was negligent. The experts called by the defendant were asked what was the- best or the very best way to do the work. Although their answers did not indicate the method employed by the plaintiff, they did not tend to charge it with negligence. For. the test of plaintiff’s liability was not whether, it followed the best fashion, but whether its method of repair involved failure to employ ordinary care and skill required in such work. (See Reiss v. N. Y. S. Co., 128 N. Y. 103, 107; Lannen v. Albany Gas Light Co., 44 id. 459.) The judgment must be reversed and a new trial must be ordered, costs to abide the event. Woodward, Burr, Bioh and Carr, JJ., concurred. Judgment of the Municipal. Court reversed and new trial ordered, costs to abide the event.