Neilson v. Phillips

Mr. Justice Allen delivered the opinion of the court; This action is brought to recover the value of a seal skin coat and two fur neck scarfs, delivered by plaintiff to defendant for repair, which, it is alleged, defendant refused and neglected to return to plaintiff. The answer denies negligence and sets up that defendant was deprived of possession of the coat by a burglary and larceny, without fault on the part of the defendant. There is no controversy over the proposition that a bailee is not liable for the loss of bailed property resulting without his negligence, from robbery, burglary or theft. The plaintiff rests her case upon the proposition that defend-' ant had contracted to deliver the articles back to her, with the repairs thereon completed, on a date prior to the burglary and larceny, and that he failed to perform such agreement and was guilty of a breach before the burglary in failing to so deliver the articles back to the plaintiff. There is no sufficient evidence in the record of such an agreement so as to make the time of agreed repair and delivery precede the time of the burglary. The evidence, at most, shows an expression of opinion on the part of the bailee as to the date on which the repairs would probably be completed, and an extension of such date, with an acquiescence on the part of the plaintiff, to a later time. The plaintiff failed to prove an agreement amounting to a con [237] tract of insurance of delivery by defendant to plaintiff of the property on the date or at the time alleged in the amended complaint. The facts are quite analogous to those found in Grant v. Miller, 159 N. Y. Supp. 829, where a recovery was denied. The judgment is reversed and the caused remanded with directions to dismiss the action. Mr. Justice Teller and Mr. Justice Bailey concur.