#### Joseph Stern, Defendant in Error, v. Samuel Welensky and Morris Goldberg, copartners, Plaintiffs in Error.

Gen. No. 18,094.

(Not to be reported in full.)

Abstract of the Decision.

1. Bailment, § 1—what constitutes. Where a patron of a bathing establishment pays for the use of a safety deposit box and places his money and valuables therein while he takes a hath, the transaction constitutes a bailment of such money and valuables.

Error to the Municipal Court of Chicago; the Hon. Habby Olson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.

Affirmed.

Opinion filed October 15, 1913.

Statement of the Case.

Action by Joseph Stern against Samuel Welensky and Morris Goldberg, copartners trading as Welensky & Goldberg, to recover the value of certain property. From a judgment for plaintiff for two hundred and eighty-two dollars and costs, defendants bring error.

Harry M. Fisher, for plaintiffs in error.

McMahon & Cheney, for defendant in error; E. C. Reniff, of counsel.

*

See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

Mr. Presiding Justice Graves

delivered the opinion of the court.

*4182. Bailment, § 12 * —when bailee is liable for failure to return articles. Where a patron of a bathing establishment delivered property to such establishment as bailee and such property could not be returned on demand a presumption of negligence on the part of the bailee arose, and since the bailee failed to show that the property had been lost by some violence, accident or theft, it was liable for the value thereof.

3. New trial, § 67*—when awarded. Newly discovered evidence in order to require the granting of a new trial, must be of a conclusive character against the verdict returned and a new trial will not be awarded for the sole purpose of impeaching a witness, even though such witness is a party, particularly where the evidence given relates to an immaterial matter.

4. Bailment, § 27*—what evidence is material. Where a bailor shows that he deposited money and valuables with a bailee, it is wholly immaterial how such bailor acquired the property deposited.