15 Daly 538 | New York Court of Common Pleas | 1890
This action was brought in the first district court to recover damages in the nature of demurrage for the detention of plaintiff’s boat, and it was tried by the justice without a jury. On July 10, 1888, judgment was rendered for plaintiff in the sum of $60, which was reversed on appeal as excessive. The second trial, on February 21, 1889, resulted in a judgment for plaintiff for $51, and upon appeal to the general term of this court the last judgment was affirmed; the chief justice writing an opinion in affirmance, which is reported in full in 6 N. Y. Supp. 531. Thereafter defendants were granted leave to reargue the appeal, (7 N. Y. Supp. 663,) and the matter is now again presented for determination on such reargument. The facts are sufficiently stated in the opinion referred to, and a careful examination of the evidence, and of the law stated, fails to show any error in the opinion. Defendants, however, now contend that there is no proof of any contract of shipment between themselves and plaintiff, and that it does not appear that the delay in loading plaintiff’s boat is attributable to any fault on their part, and that upon such grounds they are absolved from liability, and the judgment should be reversed. Both contentions are untenable. It appears that
Heither can the defendants claim to be absolved from liability for the de tention of plaintiff’s boat, because it does not appear that such detention was due to fault on their part. Plaintiff says that on May 8, 1888, in response to defendants’ written request, he called upon their agent Uhler, and at that time received from him written instructions addressed to the railroad company’s agent, directing the latter to load plaintiff’s boat; that at the same time, in answer to plaintiff’s inquiry, he was informed by Uhler that the coal would be delivered on May 10th, and that on the last-mentioned day he had his boat in readiness to receive the coal. There was some conflict of testimony on this point before the trial justice, but in the absence of palpable error or gross injustice, this court is not warranted in reversing the judgment of the court below upon that ground. It must then be assumed, for the purpose of this appeal, that the defendants had undertaken to deliver the coal at a certain time, and, for their failure to deliver the coal at the time agreed upon, they cannot claim to be absolved from responsibility because they were prevented from performance by the neglect or omission of some other person upon whom they had depended for such performance. See Tompkins v. Dud