This is аn appeal by permission of this court from a judgment of the Appellate Division, first department, unаnimously affirming a verdict directed in favor of the defendant.
The action was brought to recover the value of work, labor and services alleged to have been performed by the plaintiff in connection with the transportation of certain leather from Brooklyn to a steamship lying alongsidе a pier in New York, consigned to J. Anderson & Co., Inc., at Copenhagen, Denmark. The leather consisted of 360 bales. While the same was being transferred from Brooldyn to New York 38 of the bales were lost оr stolen. The defendant in its answer set up a counterclaim for the value of these bales. At the сonclusion of the evidence there was no dispute as to the value of the plaintiff’s claim, nоr was there any dispute as to the value of the 38 bales lost or stolen. Each party moved for the direction of a verdict in its favor. The trial judge directed a verdict in favor of the defendant for the difference between the two claims.
The only question presented by the appeal is as to *416 the validity of defendant’s counterclaim. The solution of thаt question necessarily depends upon whether the plaintiff, in making the transfer, acted in the caрacity of a common or a private carrier. If the former, then it is liable for the value of thе leather stolen or lost; if the latter, then it is not liable since it was a mere bailee for hire.
Therе is no allegation in the counterclaim nor was any proof offered at the trial, that the loss of the leather was due to the negligence of the plaintiff.
The appellant is a domestic corporation engaged in business in the city of New York. Its business consists in obtaining such contracts for the transfer of goods from one place to another as it may see fit to make, and upon such terms as it may name. It does not hold itself out to the public as a general transfer agent, or to accept all business in its line which may be intrusted to it. It engages space in cars and steamers for goоds intrusted to it for shipment if it sees fit to accept such goods upon the terms specified by it. It owns no trucks, lighters, railroad cars or any means of transportation of any kind. When it accepts a contract it engages others to make the transfer, and receives a compensation in exсess of what it has to pay for such transportation.
The correspondence between thе parties clearly indicates that both the plaintiff and the defendant understood that the apрellant, in accepting the leather, acted as the agent for the respondent in arranging fоr the transportation of the goods from Brooklyn to New York. There is no evidence to show that the plaintiff held itself out as a common carrier, or that the defendant, when it delivered the leathеr to the plaintiff to transport the same to the pier in New York, believed the plaintiff was acting in the capacity of a common carrier. The plaintiff, when it agreed with the defendant to makе the transfer, engaged one Haring, a truckman,, to move the leather. While he was doing so, the loss оccurred.
*417 There being no allegation in the counterclaim and no proof that the plaintiff wаs negligent in employing Haring, the plaintiff is not liable for the loss. In the reply to the counterclaim, the plaintiff put in issue the allegation of the answer that it was a common carrier or that in transporting the leather it acted in that capacity. On the contrary, it alleged affirmatively that it did not act in that capacity but only as a private carrier.
The difference between a common аnd a private carrier is well understood. A common carrier of personal property is one who agrees for a specified compensation to transport such property frоm one place to another for all persons that may see fit to employ him.
(Jackson Architectural Iron Works
v.
Hurlbut,
As there is nо dispute concerning the plaintiff’s claim, the judgment appealed from should be modified, and judgment dirеcted in its favor for that amount, with interest from August 4, 1919, with costs in all courts.
Hiscock, Ch. J., Cardozo, Crane, Andrews and Lehman, JJ., concur; Pound, J., not voting.
Judgment modified, etc.