Veihelmann v. Manufacturers Safe Deposit Co.

Per Curiam. The holding in this case by the Court of Appeals on the previous appeal from judgment for defendant (303 IST. Y. 526), which reversed this court and the Trial Term, is controlling upon us, as law of the case and as a matter of stare decisis. The record on the second trial does not provide a sufficient basis for distinction. The allegation and the proffered proof as to the stealing of the $10,000 from the safe-deposit box does not, in placing responsibility on defendant’s employees, exclusively relate to theft by such employees. Such allegation and proof is consistent with carelessness of defendant’s employees, albeit carefully selected, and of defendant, in permitting access to the box of a stranger who somehow acquired the original or a duplicate key to the box. Absent theft by defendant’s employees, the ease could put in issue the carefulness of defendant and its employees with reference to the system of access to safe-deposit boxes and the manner in which that system was implemented- by the employees under the general supervision of defendant. It should be noted that the Court of Appeals on the first appeal pointedly referred (p. 530) to the fact that no access records were kept by the defendant company and that ordinarily only one employee was in charge of the vault and of the more than nineteen hundred safe-deposit boxes that were enclosed therein. Accordingly, the judgment for plaintiff should be affirmed.