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Zucker v. Kenworthy Bros. Inc.

Decided: August 5, 1943.

EDWARD ZUCKER, PLAINTIFF-RESPONDENT,
v.
KENWORTHY BROS., INC., DEFENDANT-APPELLANT



On appeal from a judgment of the Second Judicial District Court of the County of Essex.

For the plaintiff-respondent, Thomas J. Holleran.

For the defendant-appellant, Arthur M. Karl.

Before Justices Case, Donges and Porter.

Donges

The opinion of the court was delivered by

DONGES, J. Defendant appeals from a judgment for plaintiff in the District Court of the Second Judicial District of the County of Essex, in a suit to recover the value of an automobile stored in defendant's premises.

The state of demand alleges:

"* * * plaintiff at the request of the defendant, stored for a consideration his automobile at the aforesaid place of storage, renting a garage at 336 Kearny Avenue in the Town of Kearny, County of Hudson, New Jersey. That it was agreed by the defendant that said defendant maintain and keep harmless and safe the said automobile of the plaintiff and of the things contained therein. Further, the defendant agreed with the plaintiff and it was his duty so due.

"4. The defendant in such a manner violated his said duty as aforesaid that the automobile of the plaintiff caught fire while stored in the place of storage or garage as aforesaid and was completely demolished together with several valuable things contained therein."

At the trial it was testified by plaintiff's daughter as follows:

"Q. Go ahead. Tell us what the conversation between you -- or the agreement between you and Mr. Kenworthy -- for your father, with Mr. Kenworthy, was. A. I asked about putting the car in the garage because I had no place to put it and didn't want to leave it in the street and not have it protected; and he said I could leave it there and he would have it protected.

"Q. Did he say anything about that? Did he elaborate on that? Did he say anything about fire and theft? A. Yes.

"Q. What did he say? A. I don't remember his exact words, but protection for fire and theft, and everything else. After all, that's why you put ...


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