38 F. 528 | E.D.N.Y | 1889
This is an action to enforce a lien for freight against a cargo of spruce lumber transported in the canal-boat Silver Wave from -Etchim, near Quebec, Can., to the port of New York. By the bill of lading the lumber was consigned to Dunbar & Co., of New York. Upon the arrival of the vessel at New York, and reporting to Dunbar & Co., they directed that the lumber be delivered to William Bichenstein, New-town Creek. The vessel proceeded to Newtown Creek, and there the lumber was discharged at the lumber-yard of Bichenstein. After the lumber had been discharged, the libelant went to the office of Bichenr stein with the intention of getting his freight, and was there told that the freight was to be paid by Dunbar & Co., and that there was a shortage in the lumber delivered. Thereafter the libelant was paid by Dunbar & Co. the amount of his freight, less $20 for shortage. It appears in evidence that the lumber, when delivered, was placed in a lumber-yard that during the delivery some of it was carted away by persons to whom it had been sold by Bichenstein. No objection was made to this by the libelant, nor at any time was any notice or intimation given to Dunbar & Co. or to Bichenstein of an intent to hold the cargo for freight. Moreover, no steps were taken to enforce a lien until September 22, 1887, although the discharge had been concluded in August. Such a state of facts does not permit the inference that an understanding existed between the libelant and the consignee’ that the delivery of the lumber at Bichejistein’s lumber-yard should not be regarded as a waiver of the lien. The libel must be dismissed, and with costs.
