King v. New Brunswick, Amboy & New York Steamboat Co.

36 Misc. 555 | N.Y. App. Term. | 1901

Scott, J.

Plaintiff’s assignor was the consignee of a barrel of whiskey intrusted to defendant, a common carrier, for transportation from New York to South Amboy, N. J. The goods duly arrived on October 2,19‘00, at the company’s dock at South Amboy and were placed in a storeroom on the dock. The plaintiff’s assignor, one Lyons, kept a retail liquor.store, and resided, with his family, in the same building in which he carries on business. On the evening of October second defendant’s agent called at Lyons’ place ,of business. He did not see Lyons, but did see his wife and notified her of the arrival of the whiskey. She left the bar-room and shortly returned, telling Davis, the defendant’s agent, that the goods were to remain on the dock, as her husband was not ready for them. Lyons did not send or call for the barrel, and on October sixth, without so far as appears any fault or negligence on the part of defendant, the whiskey was stolen from the storehouse. It appears that Lyons’ wife sometimes took his place in the store when he was obliged to be absent. There was a dispute as to whether Davis,'the company’s agent, did notify her, as he says he' did. . If the justice believed him there was evidence enough to sustain the finding that he did so notify her. There is practically no dispute as to the law applicable to the case, except as to the sufficiency of the notice to the wife. The defendant’s -liability as a common carrier ceased when it had safely transported the goods to the point of destination, had deposited them on the dock, had notified the consignee of their arrival, and he had had a reasonable time, after such notice, to remove them. Thereafter its liability was merely that of a warehouseman, and in order to sustain .a recovery for the loss of the goods, proof of negligence on the part of defendant was necessary. Hedges v. Hudson R. R. R. Co., 49 N. Y. 223; Fenner v. Buffalo & State L. R. R. Co., 44 id. 505; Tarbell v. Royal Exchange Shipping Co., 110 id. 170. In the latter case it was said: “ But a delivery which will discharge the carrier may be constructive and not actual. To constitute a constructive delivery the carrier must, if practicable give notice to the consignee of the arrival, and when this has been done and the goods are discharged in the usual and proper place, and reasonable opportunity afforded to the consignee to remove them, the liability of the carrier, as such, -terminates. The duty of the consignee to receive and take the goods is as imperative as the duty of the carrier to deliver. Both obligations are to be reasonably construed, having reference to-the circumstances. The stringent liability of the carrier cannot be continued at the option, or to suit the convenience of the consignee.” If then Lyons, the consignee, was properly notified of the arrival of the goods and did not remove them within a reasonable time, the defendant was released from its obligation as an insurer of the goods and cannot be held liable as a warehouseman, because it did not appear that the robbery resulted in any way from its negligence. The plaintiff’s assignor allowed the whiskey to remain on the dock for three days after his wife had been notified of its arrival. This, under the cifcumstances, was an unreasonable length of time. Wynantskill Knitting Co. v. Murray, 90 Hun, 554, 558. It only remains to be considered whether, under the circumstances, the notice given to the wife was sufficient. We think it was. She was in the consignee’s place of business, apparently in charge during his absence. The carrier had a right to rely upon her apparent authority to represent her husband in such a matter, and was not bound to seeks him out personally. A notice to a clerk or other person in charge of the consignee’s place of business fulfills the carrier’s duty.

y. The judgment must be affirmed, with costs.

McAdam, P. J., and MacLean, J., concur.

Judgment affirmed, with costs.