De Lemos v. Cohen , 59 N.Y.S. 498 ( 1899 )

Leventritt, J.

On November 11, 1893, plaintiff’s assignor purchased from the defendants and paid for 144 bundles of damaged manilla paper. The assignor testified that he had the privilege of leaving the paper in the cellar of the defendants’ premises, which he conceded to be the place of delivery. He also testified that he removed all the bundles with the exception of twelve, which he left in the cellar. No charge was made for their storage. He admits that they were subject to removal by him at Ms pleasure. In May, 1895, the defendants moved their place of business and, according to the testimony of two of their witnesses, notified the plaintiff’s assignor to remove the twelve bundles. The latter, while professing no recollection of the notice, does not deny that he received it. Hpon quitting the old premises the defendants-left the paper in controversy in the cellar. Shortly thereafter, the plaintiff’s assignor, having paid no attention to the notice, made demand for Ms goods. This was ignored. Three and a half years later tMs suit was begun for the value of the twelve bundles. Judgment was had by the defendants and the plaintiff has appealed. TMs disposition of the cause was proper. The defendants were at most gratmtous bailees and there is proof to show that they discharged their full obligation of exercising the slight care incumbent on them. The depositaries, that is, the defendants, terminated the deposit by giving due notice to the depositor, that is, the plaintiff’s assignor, who, failing to remove Ms property in compliance therewith, must bear the loss subsequently occurring. Dale v. Brinckerhoff, 7 Daly, 45; Roulston v. McClelland, 2 E. D. Smith, 60.

A motion was made below on affidavits for a new trial on the ground of newly-discovered evidence. This motion was properly denied, as the justice was without jurisdiction to entertain the application. The extent of his power to grant a new trial, as defined by chapter 748 of the Daws of 1896, is measured by the provisions of section 999 of the Code of Civil Procedure, wMch does not embrace new trials grounded on newly-discovered evidence. See Martin v. Guindon, 22 Misc. Rep. 141. Even if the court could have, taken cognizance of the motion, no appeal would lie from its denial of the relief. Robb v. Osgoodby, 20 Misc. Rep. 622.

The judgment must be affirmed and the appeal from the order dismissed.

Ebeedman, P. J., and MacLean, J., concur.

Judgment affirmed, with costs to respondents, and appeal from order dismissed.