43 Misc. 74 | N.Y. App. Term. | 1904
This action is brought to recover damages in the amount of thirty-six dollars, which plaintiff claims he sustained by reason of the wrongful delivery by the defendants of a shipment of hay. The Canadian Pacific Railway Company shipped the hay in their car No. 50,582, and delivered it to the New York Central & Hudson River Railroad Company, to be forwarded by it as a succeeding carrier to its destination. There was a discrepancy between the bill of lading issued by the Canadian Pacific Railway Company to the shipper and the waybill for this car given to the New York Central & Hudson River Railroad Company, although they should have agreed; that is to say, the bill of lading called for a delivery at “ Melrose Junction,” while the waybill called for a delivery at “ 130th Street, N. Y.” The ear of hay arrived at One Hundred and Thirtieth street May 14, 1903, and a notice of its arrival was sent to the plaintiff, the party to be advised, on the same date. On the following day, May .15, 1903, the plaintiff, by letter, directed the New York Central & Hudson River Railroad Company to send the car to Sixtieth street and there deliver it to one Hoffman upon the surrender of the bill of lading, and it was so delivered. As a succeeding carrier never seesthe bill of lading till it is surrendered and a delivery of the goods made, the waybill is a complete defense to the New York Central & Hudson River Railroad Company, and this has been conceded by the counsel for the appellant in the brief submitted on this appeal. And as against the Canadian Pacific Railway Company the plaintiff waived any right that he might originally have had under the bill of lading for a delivery at Mel-rose Junction, by requesting, almost as soon as notified of the
The judgment must be affirmed, with costs.
Davis, J., concurs.
Sweet v. Barney is authority for releasing the Hew York Central & Hudson River Railroad Company from liability upon the assent of the defendant to receive his goods at a point where he could have them speedily and avoid further loss, but it contains nothing to show why the Canadian Pacific Railway Company should not pay for the damage suffered by the plaintiff under treatment too much akin to duress in receiving his goods at an undesirable place and only to avoid further loss after being driven from pillar to post through the negligence of the Canadian Pacific Railway Company, which, if contending here, as contends its counsel, for legal principles, would better acknowledge the authenticity of bills of lading issued by it and make good the shipper’s loss, caused solely by the blunder of the railway’s servants.
Judgment affirmed, with costs.
