40 Misc. 654 | N.Y. App. Term. | 1903
Plaintiff brought this action to recover the value of six boxes of fish sent to him from Boston, and sold by defendant under the following circumstances:
Ten boxes of fish, packed in ice, were shipped at Boston on April 7, 1902, -over defendant’s road and consigned to plaintiff in this city. The shipment reached here on the morning of April 8, 1902, and the defendant immediately notified the plaintiff of its arrival, and notified him that “it is imperatively necessary that all freight be taken away the same day of its arrival.” This notice plaintiff received between nine and ten a. m. of April eighth. The goods not having been removed on April ninth, and it being observed that the ice in the boxes was loose, that the fish were giving out an odor indicating that they were be
Appellant claims that the sale so made by its direction was justifiable, for the reason that having an interest in the property sold by virtue of a lien as carrier, and that, if the freight had perished its lien would have become valueless, that, therefore, under the circumstances it was warranted in protecting itself from loss. It also claims it is protected by statute. Chapter 582, Laws 1899, amending section 46 of the Railroad Law, provides as follows: “ Unclaimed live stock and perishable freight or baggage may be sold by any such railroad or other transportation
Without discussing the first point raised by the appellant it is sufficient to say that we think that the defendant has fully complied with the provisions of the foregoing act. At the'time it removed the six boxes of fish it had been in possession of the railroad for four days, viz.: April seventh, the day they were shipped, to April tenth, inclusive; and fifty-four hours of this time was after their arrival at their destination .and before defendant took any action regarding their disposal. The plaintiff had been notified of their arrival and had ample opportunity to remove the fish, but had given no indication of an intention to accept them. Under these circumstances the defendant had a right, on April tenth, to consider them as unclaimed. “ Unclaimed ” in the statute can mean nothing but “ unclaimed within a reasonable time after notice ” (Hedges v. Hudson R. R. Co., 49 N. Y. 223), and what is a reasonable time must be determined by the circumstances attending each case. Plaintiff’s counsel conceded on the trial that never before had more than two days elapsed between the arrival and delivery of fish. The defendant, in estimating what was a reasonable time, had a right, to consider the fact that the goods were perishable. That fish, placed in boxes, packed in ice and shipped long distances in railroad cars are perishable freight is a fact of such common knowledge as to need no judicial utterance for its establishment. In the case at bar the evidence of the perishable nature of the consignment, on April ninth and tenth, was unmistakable. The time that had elapsed since shipment, the absence of ice, the odor emanating from the boxes, the leaking of the slimy fluid, all gave strong indications of decay, and was notice to the defendant that prompt action was necessary, and justified it in taking the course it followed. The plaintiff knew that a sale of the six boxes had been directed and knew where the goods were to be sold.
The defendant was bound to sell “ upon the best terms that can be obtained.” It sent the fish to the principal market of the city, to a large and well-known dealer, instructed him to sell at the best price he could, and they were sold in open market at the highest price possible. This was a compliance with the terms of the act. The material facts in the case being undisputed, the questions arising are those of law only.
The judgment must be modified by reducing the amount of the recovery in the court below to the sum of thirteen dollars and ninety-four cents and costs, and as modified affirmed, without ■costs to either party on this appeal.
Gildersleeve and Giegerich, JJ., concur.
Judgment modified by reducing amount of recovery in court below to thirteen dollars and ninety-four cents and costs, and as modified affirmed, without costs.