Price v. Price. the same might have been maintained by or against the respective testators." It was decided in Wade v. Kalbfleisch, 58 N. Y. 282; S. C., 17 Am. Rep. 250, that a contract of marriage was not a contract within the purview of this statute, and that an action for breach of promise of marriage did not survive. So far as the com plaint in this action can be claimed to allege a contract it is a contract of marriage. It is true that it alleges that the defendant "promised, undertook, covenanted and warranted that he had the right and was in all respects competent to marry." These allegations do not alter the character of the action. What is thus alleged is implied in every promise of marriage, to wit, that the promisor has the right and is competent to marry. The promise could not be kept by one not competent to marry, and a mere form of marriage, void or voidable at the election of the promisor, would not satisfy the promise. Hence, if this be regarded as an action upon the contract of marriage it must be controlled by the case above cited, and it is not removed from the control of that case because a form of marriage followed by cohabitation was celebrated. But the better construction of this complaint is that it is an action purely for a wrong in inveigling the plaintiff by false representations and deceit into a void or voidable marriage followed by several years of cohabitation. A great wrong was doubtless thus done the plaintiff, for which, if the defendant had not died, she might have recovered. But there is no statute by virtue of which an action for such a wrong survives. It is provided by sections 1 and 2 in 2 Revised Statutes, 448, as follows: "§ 1. For wrongs done to the property, rights or interests of another for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or after his death by his executors or administrators against such wrong-doer, and after his death against his executors or administrators in the same manner and with the like effect in all respects as actions founded upon contracts. "§ 2. But the preceding section shall not extend to actions for slander, for libel, or to actions of assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or the person of the testator or intestate of any executor or administrator." It has been decided that wrongs mentioned in the first section are such only as injure property or estate. Wade v. Kalbfleisch, supra; Claflin v. Meyer. Cregin v. Brooklyn and Crosstown R. R. Co., ante, p. 192. The wrongs alleged here are merely personal wrongs, inflicting injury to the person of the plaintiff, which at common law would have been redressed by an action on the case. They did not affect her property or estate. It does not appear that she ever had any estate. It is true that if the marriage had not been annulled she might have had property interests in the estate of the defendant as his widow. But he had the legal right to institute the action, and outain the judgment annulling the marriage. That judgment was the act of the law, and he did no legal wrong to the plaintiff in procuring it. In any aspect, therefore, the cause of action did not survive, and the order of the general term must be affirmed. All concur. Order affirmed CLAFLIN V. MEYER. (75 N. Y. 260.) Negligence-warehouseman — burden of proof — burglary. In an action against a warehouseman for goods lost, it appearing that they were stolen by a burglar, the burden is still on the plaintiff to show that the negligence of the defendant contributed or led to the loss. A CTION against a warehouseman for neglect to deliver goods. The opinion states the case. The plaintiff had judgment below. A. R. Dyett, for appellant. Y. 11, 14; Maher v. Wm. Henry Arnoux, for respondents. Negligence is a question of fact. Fairfax v. N. Y. C., etc., R. R., 67 N. R. R., 67 id. 54; Matter of Begys, 67 id. 123. proved the loss of the goods, the burden of proof was upon the defendant to establish affirmatively that the loss was not caused by any want of proper care or diligence on his part. Coleman v. Livingston, 4 J. & S. 37; Burnell v. N. Y. C. R. R. Co., 45 N. Y. 184-189; S. C., 6 Am. Rep. 61; Platt v. Hibbard, 7 Cow. 500; Schwerin v. McKie, 51 N. Y. 180-186; S. C., 10 Am. Rep. 581; Fairfax v. N. Y. C. and H. R. R. R., 67 id. 11, 14; Steers v. Liverpool, N. Y. and P. Steamship Co., 67 id. 1, 6; S. C., 15 Am. Rep. Claflin v. Meyer. 453; Faucett v. Nichols, 64 id. 377, 381; Tompkins v. Haile, 3 Wend. 406; Foshay v. Fergerson, 5 Hill, 154; Sir Wm. Jones' Essay on Bailments, 44, 79. HAND, J. The counsel for the respondents is correct in his position that the question of burden of proof is the material one upon this appeal. For the evidence is such that if it were incumbent upon the defendant to prove himself free from all negligence causing or attending upon the burglary, and not merely to leave the case as consistent with due care as with the want of it, it is clear that the judgment, so far as it adjudges his liability for the goods, must be affirmed, as we cannot say that such proof of a conclusive character was given. But the law as to the burden of proof is pretty well settled to the contrary. Upon its appearing that the goods were lost by a burglary committed upon the defendant's warehouse, it was for the plaintiffs to establish affirmatively that such burglary was occasioned or was not prevented by reason of some negligence or omission of due care on the part of the warehouseman. The cases agree that where a bailee of goods, although liable to their owner for their loss only in case of negligence, fails, neverthe less, upon their being demanded, to deliver them or account for such non-delivery, or, to use the language of SUTHERLAND, J., in Schmidt v. Blood, where "there is a total default in delivering or accounting for the goods," 9 Wend. 268, this is to be treated as prima facie evidence of negligence. Fairfax v. N. Y. C. and H. R. R. R. Co., 67 N. Y. 11; Steers v. Liverpool Steamship Co. 67 id. 1; S. C., 15 Am. Rep. 453; Burnell v. N. Y. C. R. R. Co., 45 N. Y. 184; S. C., 6 Am. Rep. 61. This rule proceeds either from the assumed necessity of the case, it being presumed that the bailee has exclusive knowledge. of the facts and that he is able to give the reason for his non-delivery, if any exist, other than his own act or fault, or from a presumption that he actually retains the goods and by his refusal converts them. But where the refusal to deliver is explained by the fact appearing that the goods have been lost, either destroyed by fire or stolen by thieves, and the bailee is therefore unable to deliver them, there is no prima facie evidence of his want of care, and the court will not assume in the absence of proof on the point that such fire or theft was the result of his negligence. Lamb v. Camden and Amboy R. R. Co., 46 N. Y. 271, and cases there cited; S. C., 7 Am. Rep. 327; Schmidt v. Blood, 9 Wend. 268; Platt v. Hibbard, 7 Cow. 500, Claflin v. Meyer. note. GROVER, J., in 46 N. Y., supra, says, in delivering the opinion of the court, the question is "whether the defendant was bound to go further (i. e., than showing the loss by fire) and show that it and its employees were free from negligence in the origin and progress of the fire, or whether it was incumbent upon the plaintiffs to maintain the action to prove that the fire causing the loss resulted from such negligence." And he proceeds to show that the charge of the judge who tried the cause gave to the jury the former instruction, and that this was contrary to the law and erroneous. So SUTHERLAND, J., in 9 Wend, supra, in the case of a warehouseman, says: the onus of showing the negligence "seems to be upon the plaintiff unless there is a total default in delivery or accounting for the goods." And he cites a note of Judge CowEN to his report of Platt v. Hibbard, 7 Cow. 500, in which that very learned author says, criticising and questioning a charge of the circuit judge, "the distinction would seem to be that when there is a total default to deliver the goods bailed on demand, the onus of accounting for the default lies with the bailee; otherwise he shall be deemed to have converted the goods to his own use and trover will lie (Anonymous, 2 Salk. 655), but when he has shown a loss or where the goods are injured, the law will not intend negligence. The onus is then shifted upon the plaintiff." It will be seen, as the result of these authorities, that the burden is ordinarily upon the plaintiff alleging negligence to prove it against a warehouseman who accounts for his failure to deliver by showing a destruction or loss from fire or theft. It is not of course intended to hold that a warehouseman, refusing to deliver goods, can impose any necessity of proof upon the owner by merely alleging as an excuse that they have been stolen or burned. These facts must appear or be proved with reasonable certainty. Nor do we concur in the view that there is in these cases any real " shifting" of the burden of proof. The warehouseman in the absence of bad faith is only liable for negligence. The plaintiff must in all cases, suing him for the loss of goods, allege negligence and prove negligence. This burden is never shifted from him. If he proves the demand upon the warehouseman and his refusal to deliver, these facts unexplained are treated by the courts as prima facie evidence of negligence; but if, either in the course of his proof or that of the defendant, it appears that the goods have been lost by theft, the evidence must show that the loss arose from the negligence of the warehouseman, Miles v. Loomis. Applying these principles to the present case, we must hold that when it appeared, as it did, that the goods were taken from the defendant's warehouse by a burglarious entry thereof, the plaintiffs should have shown that some negligence or want of care, such as a prudent man would take under similar circumstances of his own property, caused or permitted or contributed to cause or permit that burglary. [Omitting questions of fact.] The judgment must be reversed and new trial ordered, with costs to abide the event. All concur, except MILLER and EARL, JJ., absent at argument. Judgment reversed. MILES V. LOOMIS. (75 N. Y. 288.) Evidence-handwriting-expert opinions. On a question of handwriting, the opinions of experts, founded solely on a comparison of the writing in dispute with genuine signatures properly in evidence, are competent evidence. A CTION on a promissory note. The opinion states the point. The defendant had judgment below. Frank Hiscock, for appellant. It was error to allow witnesses with no other qualifications than they testified they had as experts, to give opinions that the signature to the note sued on was simulated. People v. Spooner, 1 Den. 343; Johnson v. Hicks, 1 Lans. 150; Kowing v. Manly, 49 N. Y. 192-203; S. C., 10 Am. Rep. 346; Matthews v. Coe, 49 id. 57; Sheldon v. Sheldon, 51 id. 354. Wm. C. Ruger, for respondent. HAND, J. I think the two documents put in by the defendants without objection on the part of the plaintiff must be regarded as properly in evidence for all the purposes of the case. It need not be held, where it clearly appears either by the avowal of the party offering them or otherwise, that instruments are put in solely for the pur |