better and more practical one, that where an examination of all the facts and circumstances shows the object of the association was to enable the parties to compete where without combining they could not do so, formed for an honest purpose and with such an intent, and not with any view to preventing competition or deterring bidders or "chilling bids," the sale will be upheld and completed: See Rorer on Judicial Sales, sec. 94; Hunt v. Elliott, 80 Ind. 245; 41 Am. Rep. 794; Herman on Executions, sec. 205; Freeman on Executions, sec. 297; 1 Lawson's Rights, Remedies, and Practice, sec. 220; Phippen v. Stickney, 3 Met. 385; Smull v. Jones, 6 Watts & S. 122; Jenkins v. Frink, 30 Cal. 586; 89 Am. Dec. 134; Fidelity Trust and Safety Vault Co. v. Mobile S. R. Co., 54 Fed. Rep. 26; Breslin v. Brown, 24 Ohio St. 565; 15 Am. Rep. 627; National Bank of Metropolis v. Sprague, 20 N. J. Eq. 159; Switzer v. Skiles, 3 Gilm. 529; 44 Am. Dec. 723; Marie v. Garrison, 83 N. Y. 14; Hopkins v. Ensign, 122 N. Y. 144; Wicker v. Hoppock, 6 Wall. 94; Maffet v. Ijams, 103 Pa. St. 266; Barling v. Peters, 134 Ill. 606; Neely v. McClure (Pa., Oct. 19, 1885), 1 Cent. Rep. 230; Ritchie v. 713 Judd, 137 Ill. 453; James v. Fulcrod, 5 Tex. 512; 55 Am. Dec. 743; Bellows v. Russell, 20 N. H. 427; 51 Am. Dec. 238; Smith v. Greenlee, 2 Dev. 126; 18 Am. Dec. 564; Goode v. Hawkins, 2 Dev. Eq. 393; Smith v. Ullman, 58 Md. 183; 42 Am. Rep. 329. The decree of the district court confirming the sale was right and is affirmed.

CONTRACTS AMONG BIDDERS AT JUDICIAL SALE TO PREVENT COMPETITION.-An agreement among several whereby one is to buy land about to be offered at sheriff's sale for the benefit of all the parties to the contract, each furnishing his proportion of the money to the buyer, is void, as against public policy, if made to prevent fair competition in bidding, or for any other fraudulent purpose. But parties may lawfully associate to buy property at a public sale, if there is no corrupt bargain or combination among them for the purpose of preventing a fair competition among bidders, or any fraudulent purpose on their part in the transaction. So, an oral agreement that one of two joint mortgagees of personal property shall buy it at judicial sale, the other not attending or bidding, and shall hold, use, and dispose of it for the benefit of both, has been held not to be within the statute of frauds or against public policy: See note to Barton v. Benson, 12 Am. St. Rep. 885.

CASES

IN THE

COURT OF APPEALS

NEW YORK.

WINTRINGHAM V. HAYES.

[144 NEW YORK, 1.]

WITNESS-EXPERT Evidence.—A shipwright should be permitted to an. swer a hypothetical question upon the condition of a yacht before and after an alleged injury, and calling for his opinion as to the cost of putting the boat into as good condition as it was assumed by the question to be in before the injury.

EXPERT EVIDENCE-HYPOTHETICAL QUESTIONS.-When the testimony of an expert is proper, counsel may assume the existence of any state of facts which the evidence tends to justify, and base their questions upon such assumption. WITNESS-EXPERT EVIDENCE.-A SHIPMASTER who has been in charge of a yacht, which has subsequently received injuries while in charge of another, may be asked whether such injuries were the result of ordi. nary wear and tear.

NEGLIGENCE EVIDENCE OF.-IN AN ACTION AGAINST A BAILEE for loss and damage to property by accident, proof of the accident may afford prima facie proof of negligence.

BAILOR AND BAILEE-BURDEN OF PROOF AS TO CARE.-If a bailor proves the condition in which he delivered his property to the bailee, the nature of subsequent injuries suffered by it, and that they were not the result of ordinary wear and tear, he makes out a prima facie case, and the burden of proof shifts to the bailee if he had the property within his exclusive control, and he must be held answerable for such injuries, unless he can show that they were not the result of his want of proper

care.

J. Noble Hayes, for the appellant.

R. Burnham Moffat, for the respondent.

BARTLETT, J. This is an appeal by the defendant from a judgment of the general term of the city court of Brooklyn

(725)

modifying and affirming a judgment for plaintiff on trial before a referee.

The plaintiff, a yacht-builder, sued for services rendered and materials furnished to defendant's yacht White Wing.

The defendant contested the plaintiff's claim, and set up two counterclaims; the first alleged that plaintiff was indebted to the defendant in the sum of five hundred dollars for damages growing out of plaintiff's negligence in the performance of a contract to give a mooring-berth, and take care of defendant's yacht, White Wing, while out of commission; the second averred that plaintiff, through his negligence, had lost, or failed to deliver upon demand, to defendant, a yacht's small boat of the value of sixty-five dollars.

The referee allowed the plaintiff's demand, and dismissed both counterclaims.

The general term held that the first counterclaim was improperly dismissed on the ground that certain evidence was erroneously excluded, and that a presumptive case of negligence was made out against plaintiff.

Instead of reversing the judgment and ordering a new trial the general term-held that the amount in dispute under the first counterclaim was thirty-six dollars, and that the judg ment should be reduced by that amount and interest, making a total of forty-one dollars and sixty-five cents, and as so reduced should be affirmed, or, in default of reduction, reversed.

The plaintiff stipulated to reduce the judgment, and thereupon it was affirmed.

The general term was obviously in error in holding that thirty-six dollars and interest was the amount involved under the first counterclaim.

The defendant claimed that his yacht, while in plaintiff's custody, was seriously damaged, and demanded five hundred dollars. The defendant, under cross-examination, testified that, in a conversation with the plaintiff, the latter said that to make temporary repairs of the yacht, and to put it in shape where injuries would not go any farther, it would cost about thirty-six dollars. The defendant then adds: "I am not able to recollect fully what the repairs were beyond they were temporary. It was not pretended that they would put the boat back in her original shape." This is not denied by plaintiff, although he was afterward recalled as a witness several times.

The defendant sought to prove the amount of his damages under this counterclaim by calling as a witness Maurice D. Lawrence, a shipwright. This witness was put a hypotheti cal question which assumed the condition of the yacht before and after her injury, and then asked what it would cost to put the boat after the damage described in as good condition as she was assumed by the question to be at the time she was laid up. This question was objected to and excluded.

We think this was error; the question was within the wellsettled rule, as laid down by this court, that, when the testimony of experts is proper, counsel may assume the existence of any state of facts which the evidence fairly tends to justify: Stearns v. Field, 90 N. Y. 641, and cases cited.

Defendant's effort to make this proof is further evidence that the general term was mistaken in assuming that the amount in dispute was thirty-six dollars and interest.

We agree with the general term that it was error in the referee to exclude the evidence of John Macdonald (a shipmaster, who was in command of the White Wing the season before plaintiff took charge of her), when asked if the injuries to the yacht were the result of ordinary wear and tear.

While it is true, as a general proposition, that a bailor charging negligence on the part of a bailee rests under the burden of proof, yet oftentimes slight evidence will shift the burden to the bailee. In an action against a bailee for loss or damage to goods by accident, proof of nature of the accident may afford prima facie proof of negligence: J. Russell Mfg. Co. v. New Haven Steamboat Co., 50 N. Y. 121.

In the case at bar if the defendant in support of his first counterclaim is able to prove the condition of the yacht when delivered to plaintiff, the nature of the subsequent injuries she sustained, and that they were not the result of ordinary wear and tear, he will have made out a prima facie case, and the burden of proof will be shifted to the plaintiff, who, as bailee, had the yacht exclusively within his control, and should be able to show the manner in which he discharged his contract obligations in the premises: Curtis v. Rochester etc. R. R. Co., 18 N. Y. 544; 75 Am. Dec. 258; Collins v. Bennett, 46 N. Y. 494. We, of course, express no opinion as to the merits, but simply lay down the rule of evidence applicable to this case.

By reason of the errors disclosed in this record before the referee and at the general term there must be a new trial.

In view of this conclusion, it is unnecessary to examine the question presented by the dismissal of the second counterclaim.

The respondent's point that the appeal should be dismissed, because the matter in controversy is less than five hundred dollars, is not well taken.

The judgment appealed from is reversed, with costs to abide the event and a new trial ordered.

All concur.

Judgment reversed.

WITNESSES-EXPERTS-HYPOTHETICAL QUESTIONS.-In putting a hypothetical question to an expert the attorney may assume as proved all that the evidence tends to prove: Quinn v. Higgins, 63 Wis. 664; 53 Am. Rep. 305, and extended note; but there must be evidence tending to prove the supposed facts: Meeker v. Meeker, 74 Iowa, 352; 7 Am. St. Rep. 489, and note; Gulf etc. Ry. Co. v. Compton, 15 Tex. 667; People v. Dunne, 80 Cal. 34; Reber v. Herring, 115 Pa. St. 599; and it must be confined to the assumed facts upon which the expert's testimony is desired: Mayor v. Wright, 63 Mich. 32; and it must be so framed as to fairly reflect the facts admitted or proved by other witnesses: Burgo v. State, 26 Neb. 639. Hypothetical questions should be based on facts assumed to have been proven: People v. McElvaine, 121 N. Y. 250; 18 Am. St. Rep. 820, and note. A hypothetical question to an expert which excludes from his consideration facts already proved should not be permitted when the excluded facts are necessary to enable him to form an intelligent opinion: Vosburg v. Putney, 80 Wis. 523; 27 Am. St. Rep. 47. An expert may be asked his opinion based upon a particular portion, though not the whole of the testimony, the truth of which is assumed: Yardley v. Cuthbertson, 108 Pa. St. 395; 56 Am. Rep. 218.

NEGLIGENCE.-There is a presumption of negligence from the happening of an accident: Uggla v. West End etc. Ry. Co., 160 Mass. 351; 39 Am. St. Rep. 481. This question is thoroughly discussed in the extended notes to Philadelphia etc. R. R. Co. v. Anderson, 20 Am. St. Rep. 490; Huey v. Gahlenbeck, 6 Am. St. Rep. 792, and the note to Fleming v. Pittsburgh etc. Ry., 38 Am. St. Rep. 837.

BAILMENT-NEGLIGENCE-BURDEN OF PROOF.-The bailor has the burden of proving that the bailee's negligence caused a loss or injury when the bailee proves the loss or injury and the attending facts and circumstances: Mills v. Gilbreth, 47 Me. 320; 74 Am. Dec. 487, and note. The burden of proof of negligence is on the plaintiff in an action on the case for negligence against the bailee of a horse for hire, and is not shifted by showing that the horse was sound when delivered to the bailee, and when returned was injured in a way that does not ordinarily occur without negligence: Malaney v. Taft, 60 Vt. 571; 6 Am. St. Rep. 135, and note. Contra, Cumins v. Wood, 44 Ill. 416; 92 Am. Dec. 189, and note. Negligence is not presumed from the destruction of goods by fire while in the hands of a bailee for hire, and, if the bailor seeks to recover of the bailee on account of the latter's negligence, he must allege and prove it: Lancaster Mills v. Merchants' Colton-press Co., 89 Tenn. 1; 24 Am. St. Rep. 586.