Opinion
January 21, 1925.
William L. Barnett, for the plaintiff.
Ralph J. Leibenderfer, for the defendant.
A siding agreement between plaintiff and defendant provided that the defendant agrees to return all cars placed on the side track "in as good condition as when received, ordinary wear and tear excepted, or to pay the railroad the cost of replacing such cars or putting them in such condition." Two of plaintiff's cars were damaged by fire without negligence on the part of the defendant. Plaintiff sues for the reasonable value of the repairs to the cars. The rule of law is stated by Williston on Contracts (Vol. 3, p. 3307): "A mere promise to return the bailed property imposes no greater liability than the implied promise involved in the contract of bailment; and the same is generally held, though the promise is to return in good condition or in as good condition as when received, but under a contract to return or pay for the bailed property, or to be responsible for it, the bailee becomes liable."
This principle distinguishes the authorities cited by defendant, inasmuch as by the contract here it expressly covenanted to pay the railroad the cost of replacing or repair. ( Rapid Safety Fire Extinguisher Co. v. Hay-Budden Mfg. Co., 37 Misc. 556; affd., 77 A.D. 643, on opinion of Appellate Term.)
The plaintiff has proved its damages under the liberal rule announced by Judge HOUGH in The Spica ([C.C.A.] 289 F. 436): "If, then, an entry be offered which is proved as part of a regular system, which is substantially contemporaneous, and concerning which no motive for falsification or probability of negligent error is observed, there exists that reasonable guaranty of trustworthiness which is the second ground of admission of regular entries [citing Wigmore on Evidence, §§ 1522-1527]. Thus we accept it as a rule, flexible in the reasonable discretion of the court that sees the men concerned in the business and hears evidence as to the necessities of the situation, that no objection, based on the exclusion of hearsay, exists to the admission of an entry made by one person in the regular course of business, recording an oral or written report, made to him by one or more other persons in like regular course, of a transaction lying in the personal knowledge of the latter, if necessity and trustworthiness as above outlined be shown to exist."
It is true that in the Federal case the time cards showing labor were not themselves admitted, but the book entries made from these time cards. In the present case the time cards were not transcribed into a book. I can see no reason why the plaintiff should be put out of court because it did not transcribe the time cards. In the nature of things it was impossible for the plaintiff to prove its damage by the conventional method, and under the rule of Mayor, etc., of New York v. Second Ave. R.R. Co. ( 102 N.Y. 572), as interpreted by Judge HOUGH in The Spica ([C.C.A.] 289 F. 436, 443), I think the damages have been sufficiently proved by the introduction of the time and material cards written contemporaneously by those who performed the labor and under whose supervision the materials were used.
Verdict directed for plaintiff for $1,663.59.