Fasy v. International Navigation Co.

77 A.D. 469 | N.Y. App. Div. | 1902

Nash, J.:

The defendant’s bill of lading acknowledging the receipt of the trunk is evidence of the fact that it was delivered to the defendant’s agent at Basle. By its terms the defendant agreed to deliver the trunk of effects in good order and condition at the port of New York with “ The International Navigation Co. New York, for disposal of Dr. Wells,” Richmond Hill, L. I. The defendant was not required by its contract to deliver the trunk to Dr. Wells at Richmond Hill. It could have relieved itself of liability by the delivery of the trunk of effects to the consignee in New York in good order and condition, and upon tendering such delivery the question as to good order and condition, if raised by the plaintiffs,

would then have been determined, and if not, the plaintiffs would have been concluded. The defendant did not do this. Its agent, without giving to the consignee, or the plaintiff Mrs. Wells, an opportunity to see or examine the trunk, or take it in charge for the purpose of entry, sent it to the custom house, and after entry there and its release by brokers of its selection forwarded the trunk by an express company chosen by the defendant. The defendant thereby retained the entire control of the trunk to the exclusion of the plaintiff until it was finally delivered to her at Richmond Hill. The defendant in this manner made the express company it selected its agent for the purpose of the delivery of the trunk to the consignee, and while the act of delivery was entirely voluntary, not being required by the contract, it deprived the plaintiffs of the right which they had to examine the trunk of effects at. the place of delivery provided in the contract. It is fair, I think, to hold that the burden of proof was thereby shifted, and that the defendant was called upon to show whether or not the loss occurred.while the trunk was in its actual custody. The evidence also fairly discloses the fact that the sealskin sack was not in the trunk when delivered at the custom house; the entry and fees then amounted to only $4.03, whereas the sack was subject to a duty of 35 per cent on its valuation of $180, the excess above $100, which it may be assumed would have been levied if the trunk had contained the sack. It seems that the conditions of the bill of lading limiting the liability of the defendant cannot be regarded as exempting the defendant from liabilities for negligence. (The Kensington, N. Y. L. J., Feb. 5, 1902.) The loss must have occurred through negligence of the defendant’s servants or agents if the sack was taken from the trunk while in its custody.

Motion for a new trial denied, with ten dollars costs.

<£as¿s DETERMINED IN THE SECOND DEPARTMENT IN THE APPELLATE DIVISION, g&cjemftje*, 1902. .