I concur for affirmance of the judgment below on the ground that, as the legislation (General Business Law, § 201, as added by Laws of 1924, chap. 506)* is ineffective, the law to be applied to the instant case remains as theretofore. Furthermore, as the learned justice below charged the jury that the burden of proving negligence was on the plaintiff without any reference to the presumption in his favor arising from non-return of the thing bailed, and as nevertheless the jury found for the plaintiff, the defendant has no cause for complaint. The new legislation seems to me to be incapable of satisfactory interpretation. While the phrase, that in case the proprietor of a restaurant issues an unvalued check he “ shall not be liable beyond seventy-five dollars ” might, if standing alone, be interpreted as limiting his liability absolutely in such case, the further provision that if a valued receipt be given “ he shall in no event be liable beyond one hundred dollars, unless such loss occurs through his fault or negligence,” is wholly meaningless because the mere failure to return the article bailed is prima *322facie proof of negligence. (Claflin v. Meyer, 75 N. Y. 260.) Even assuming that this last qualifying phrase was intended to extend liability only in case of the issuance of a valued receipt, I do not think that the statute can be severed and the first part be held good and the second as meaningless, the entire act having evidently been intended to present a single and indivisible scheme of either limitation or extension of the proprietor’s liability. I am not able to accord to this strangely phrased and vague enactment even the effect of impliedly changing either the burden of proof or the burden of going forward with the evidence, since neither the language nor the general scheme indicated is appropriate to that purpose.
I am inclined to think that justice requires that we assume that some inadvertent slip occurred in the drafting of the act and that the best disposition to be made of it is to hold that it is ineffectual to change the common law on the subject as it has existed for decades.
Since amended by Laws of 1925. chap. 400.— [Rek