33 Misc. 465 | N.Y. App. Term. | 1900
On the 2d day of November and on the 7th day of the same month, 1894, the plaintiffs, who are straw-goods importers in this city, delivered to B. J. Dean & Co., warehouse-men, eighty-three bales of straw goods for storage, receiving from the latter at the time the usual warehouse receipts for such goods. The articles were delivered wrapped with matting, and as the proof shows, were in sound condition when delivered to B. J.Dean & Co. On the 24th day of March, 1899, the plaintiffs received from the defendant the following letter: “ The E. C. Linde Company by an amicable arrangement with Messrs. B. J. Dean & Co., took possession of all the warehouse operated by the latter, 'and will hereafter conduct the same. The supervision of this business will remain in the hands of Mr. Alvin J. Donally, one of the partners of Messrs. Dean & Company. Customers will in no way be affected by the change of ownership. Every accommodation as heretofore will be given them'. The general office of Dean & Company, at No. 302 Greenwich street, will be discontinued on and after April 1, 1899, and all business will be transacted at our general office, comer of Yariclc and Beach streets, St. John’s Park, N. Y. Central & Hudson B. B. Company’s freight terminal.” On the 18th day of April, 1899, plaintiffs received a postal card from the defendant, reading as follows: “We beg to notify you that your goods have been transferred from 390-92 Greenwich street to 387-91 Greenwich street.” No further communication took place between the parties until December, 1899, when the plaintiffs requested the defendant to return the goods above mentioned. Upon such return it was discovered by the plaintiffs that four bales were damaged to such an extent as to be practically worthless.
Had the goods in question remained in the possession of E. J. Dean & Co. down to the time of their delivery to the plaintiffs, there would have been noi doubt of their liability for the injuries complained of; the goods having been received by them in- good order and condition, and having been returned in a damaged condition, it would have been sufficient for the plaintiffs to show these two facts to make out a prima facie case against the warehouseman, because the presumption thereupon arose that the injuries were caused through the negligence of the latter. It then becomes incumbent upon the warehouseman to- show facts and circumstances tending to rebut the presumption, and where these are shown the plaintiff must then resume his proofs and show by a preponderance of evidence that notwithstanding the explanation given by the defendant there had been actual negligence on his part, which- was the proximate cause of the injury complained of. But in the case at bar there was a change of bailees, and the claim is made on the part of the defendant that it became responsible for the care and custody of the goods' only from the time when they were delivered to the plaintiffs; that it is no more likely that the injuries complained of took place while the property was in its custody than while it was in that of E. J. Dean & Oo.; that, so far as it is concerned, the duty rested upon, the plaintiffs of showing that the -goods came into its hands in good order and condition, and that having failed in this essential element of proof, no-cause of action against it had been made out.
I think, however, that this proposition is untenable. The defendant did not receive the goods from the plaintiffs as an original bailment. It assumed to continue the storage of the goods which had been undertaken by E. J. Dean & Oo-., and without any intervention on the part of the plaintiffs it took the goods in question directly from said company, and in most unmistakable language placed itself in precisely the same situation with respect, to the plaintiffs and the articles in question as E. J. Dean & Co. would have held had there been no such change. Of course the consent
A case quite analogous to the one in band is that of Smith v. New York Central R. R. Co., 43 Barb. 225; affd., by Court of Appeals, without opinion, 41 N. Y. 620. In that case the plaintiff proved a delivery of the property in good order to the Western Bailroad Company in Massachusetts to he transported to E. Milliman in Eochester, N. Y.; that the railroad of that company connected with the defendant’s railroad at Albany, and that
The reasoning in that case applies "with full force to the case at bar, and precisely the same presumption with respect to the condition of the goods at the time when they were received by the defendant in that case necessarily arose with respect to the condition of the property in this case at the time when it came into the hands of the defendant. There is no injustice in this, because it is apparent that the defendant was in a very much better position to ascertain the condition of the plaintiffs’ property at the time when it ,assumed control of the same than were the plaintiffs themselves. It took the property over, not from the plaintiffs, hut from the warehouseman who had originally received it, and having it in its possession with full opportunity for examination, there is nothing unreasonable in bolding the defendant to the duty of ascertaining for its own protection whether the articles so received by it were then in the condition complained of.
It follows from what has been said that the plaintiffs made out
Giegerioh and O’Gorman, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellants to abide event.