So far as this controversy is a mere matter of account between these parties, it is a question of fact on which this court would not disturb the report of the referee, unless it was clearly against a strong preponderance of evidence. But there was testimony on both sides, and we see no reason to differ from the referee in the conclusions at which he arrived, on the state of the accounts. The claim interposed by the defendant for the missing lumber, and which was rejected by the referee, presents the only question that can properly be raised in this case. It is contended, on the part of the defendant, that the onus probandi is upon the plaintiff to exculpate himself from all blame. In the case of Platt et al. v. Hibbard et al., (7 Cowen, 497,) tried before Walworth, circuit judge, at the Clinton circuit in January, 1827, the learned judge, in his charge to the jury, said that “ when property entrusted to a warehouse-man, wharfinger, or storing and forwarding merchant, in the ordinary course of business, is lost, *329injured, or destroyed, the weight of proof is with the bailee to show a want of fault or negligence on his part; or in other words, to show the injury did not happen in consequence of his neglect to use all that care and diligence on his part that a prudent or careful man would exercise in relation to his own property.” That was an action against the defendants, as warehouse-men, for property destroyed by the burning of their warehouse; and as the jury, notwithstanding the charge, found a verdict for the defendants, and the plaintiffs moved for a new trial on a case, the soundness of the charge of the learned judge could not be brought in^question. It was not approved nor indeed adverted to by the court in giving judgment. By refusing to grant a new^^tl, the inference is that they were satisfied with the verdict. Although the reporter added a note, questioning the charge of the circuit judge, the case has nevertheless been cited elsewhere, as an authority, for the rule which casts the burthen upon the bailee, of establishing an excuse, upon proof of loss of the goods. (See Clarke v. Spencer, 10 Watts, 335.) But the rule" in this state, is believed to be otherwise. In Schmidt v. Blood, (9 Wend. 268,) it was expressly ruled that with respect to warehouse-men the onus of showing negligence rests on the owner. The liability of a wharfinger is not distinguishable from that of a warehouse-man. Both are bound only to take common and reasonable care of the commodity entrusted to them. (Story’s Bail. 450 to 457, § 444 to 452.) We are not aware of any adjudged case that makes a wharfinger liable for slight neglect, or that attempts to put him upon the footing of a common carrier. The reason and policy of the law, with respect to the liability of the latter for all injuries except such as arise from the' act of God and the public enemy, are inapplicable to the former. In all cases, where a defendant is bound only to ordinary care, and is liable only for ordinary neglect, the plaintiff cannot recover upon the mere proof of loss of the articles entrusted to the bailee. He must give some evidence of a want of care in the bailee, or his servants. ,
In the present case, therefore, it was a question of fact for the referee, whether any lumber which had been delivered on *330the plaintiff’s wharf, by the defendant, or his servants, had been lost; and in the second place, whether it was lost by reason of a want of proper care on the part of the plaintiff. The referee has found one or both of these questions in favor of the plaintiff, the wharfinger; and 1 do not see any sufficient ground to disturb his report.
This in fact disposes of the motion. If the plaintiff was not guilty of any fault, occasioning the loss of the lumber, it would seem to be an idle ceremony to inquire, whether if he had been guilty of a fault occasioning that loss, it formed the subject either of a set-off or recoupment; and if the latter, whether it would have been given in evidence without notice. The cases on the subject of recoupment referred to, are Pab v. McAllister, (8 Wend. 109.) 22 Id. 155. 5 Hill’s Rep. 71, 76. 2 Id. 194. They seem to uphold the decision of the referee; but it is not deemed advisable to place the case upon that ground.
The motion to set aside the report of the referee must be denied with costs.