128 Misc. 238 | City of New York Municipal Court | 1926
Action for loss of merchandise, alleged to have been shipped on January 23, 1920, from Scotland Neck, N. C., to the place of business of plaintiff in the borough of Manhattan, city of New York, in the amount of $792.75. On July 15,1920, the defendant notified the plaintiff that the said goods were destroyed or lost by reason of the stranding of the steamship. The defendant filed a special notice of appearance, and objection to the jurisdiction of the court over the subject-matter of the action and over the defendant.
At the time of the shipment the railroads were under control of the Director-General of Railroads, and so continued until February 28,1920, when terminated by statute. (Transp. Act of 1920, § 206-a; 41 U. S. Stat. at Large, chaps. 91, 461.) The act also provided that a suit instituted on a cause of action arising during Federal control of the railroads must be brought against the Director-General, and must be brought not later than two years after the passage of said act. The plaintiff claims the cause of action arose at the time of receipt of notice of loss, and was properly brought against the defendant in March, 1926, within six years after said date. The defendant claims the cause of action arose when the merchandise was shipped, in January, 1920, and is barred by the statute.
It is well settled that the only person who could be sued for losses occurring during the period of Federal control was the Director-General of Railroads. (Wabash, etc., v. Elliott, 261 U. S. 457.) A cause of action arising out of a breach of contract accrues at the time the breach is completed. (Bykowsky v. Public Nat. Bank of N. Y., 209 App. Div. 61.) In the case under consideration the contract is to deliver goods in New York, and it would seem that the breach occurred on the date when the carrier should have delivered the goods, but failed to do so. (Merchants’ Despatch Co. v. Topping, 89 Ill. 65; Finn v. Western R. R. Corp., 102 Mass. 283.) These were actions against the carrier to recover for goods destroyed while in the carrier’s possession, and it was held the cause of action
The motion to dismiss is denied, the objections are overruled, with leave to the defendant, within five days after service of order with notice of entry, to file and serve an amended answer.