144 N.Y.S. 941 | City of New York Municipal Court | 1913
Action submitted upon agreed statement of facts. The action is brought to recover damages for the loss of personal property under a bill of lading. The defendants are copartners, doing business as common carriers in the city of New York under the firm name of A. J. Barrett & Company. On January 23, 1913, defendants agreed with one P. C. Kuyper & Company, custom house brokers, of the borough of Manhattan, for a valuable compensation to be paid, to carry a case of dress trimmings from the United States customs appraisers’ stores, in the borough of Manhattan, to the E. L. Brady Company, at No. 22 West Thirty-fourth street, city of New York. The said P. C. ICuyper & Company were acting as the agents of said E. L. Brady Company; that the goods were the property of the E. L. Brady Company, but said goods have never been delivered to the said E. L. Brady Company, but were lost in transit while in the custody of the defendants. The said E. L. Brady Company held a policy of insurance, duly issued by the
“ Dated N. Y., March 25, 1913.
1 ‘ Received from the Federal Insurance Company $733.73 as a loan, and repayable only to the extent of any net recovery we may make from any carrier, bailee or others on account of loss to our property (described below) by theft from truck, ex ‘ Philadel
“E. L. Brady Co. CNW. WB-WE. 24913.”
By this receipt it shows that if the policy of insurance did cover this loss the said E. L. Brady Company has not been paid for the loss by the insurance company, and therefore the insurance company has not been subrogated to the rights of the E. L. Brady Company. This receipt quoted above specifically provides that the advancement of the said $733.73 was a “ loan ” and “ repayable.” This form of receipt has been construed by numerous federal authorities as being in the form of a loan and advancement to be recovered back, and does "not subrogate the insurance company in place of the person to whom said money had been advanced or loaned. It cannot be construed as a payment for the loss. See Bradley v. Lehigh Valley R. R. Co., 145 Fed. Rep. 569; affd., 153 id. 350; Inman v. South Carolina R. Co., 129 U. S. 140; Fayerweather v. Phenix Ins. Co., 118 N. Y. 324-327. In the last case cited the carrier had issued a bill of lading, to the shipper, reserving to the carrier all the rights of the shipper in any policy of insurance. The policy issued by the insurance company, however, provided that the insurance company should have all the benefit of all claims 1 of the shipper against any carrier. The policy also
Judgment for plaintiff, with costs.