137 Misc. 751 | New York County Courts | 1930
Plaintiff brought this action to recover a bill of freight charges due and owing for the transportation of three cars oL bituminous coal. Defendant does not dispute the propriety of the charges sued for but sets up a counterclaim for an amount equal ■ to that sued for by the plaintiff. The question of the counterclaim ■ will, therefore, be considered.
Sometime previous to the movement of the cars mentioned in • the complaint, two other cars were shipped from Cumberland - Mines, Pennsylvania. The shippers were “ Moore Brothers Fuel Company account of Byrne Fuel Company.” They were con-' signed to Byrne Fuel Company at Buffalo, N. Y. Upon arrival of the cars at Buffalo, Byrne Fuel Company furnished the carrier with written instructions to turn the cars over to the Lake Erie Fuel Company, Buffalo, N. Y. Later on the same day the latter company furnished the carrier with written instructions to “ deliver ” - the two cars to the defendant at Suspension Bridge, N. Y. Upon arrival of the cars at the latter place the defendant instructed plaintiff to turn the cars over to the United States Light and Heat Corporation. The latter instructions were verbal. Pursuant to these instructions the cars were placed on the private siding of the latter corporation.
The said corporation thereafter notified plaintiff and defendant that it refused to accept the cars on account of inferior quality. Four days later plaintiff pulled the cars from said siding. The contents of the cars were found to be a material which was absolutely unburnable and, after plaintiff’s efforts to dispose of the cars had failed, the contents of the cars were finally dumped, they being absolutely worthless.
In the meantime the freight charges in connection with the two cars were included by plaintiff on a statement with other charges due to the plaintiff from the United States Light and Heat Corporation. The said corporation without particular examination of this statement and without noticing or knowing that the charges - on these refused cars were included, paid the entire amount of this statement to plaintiff.
Came a time later when moneys were owing from the United States Light and Heat Corporation to defendant and,the said corporation deducted from these sums the amount of the charges
Defendant thereafter presented a claim to plaintiff for a refund, of the charges on these two cars and the claim for refund was later declined by plaintiff.
Later, the three cars referred to in the complaint were delivered to defendant by plaintiff, and plaintiff rendered defendant a bill covering the freight charges thereon. Defendant deducted from this sum the amount of the freight charges on the two refused cars and gave a check to plaintiff for the difference.
Referring to the freight for the two rejected cars plaintiff con-; tends that the defendant became the consignee when the Lake Erie ■ Fuel Corporation directed the cars delivered to defendant. The - words used were " Please deliver * * * to International Coal & Coke Company.” It contends that it is immaterial what words were used in the diversion orders — “ reconsigned to,” “ turn over to,” “ deliver to ” or “ divert to ” so long as the wording actually designated the defendant as the person intended to receive delivery of the cars at destination.
All the acts of the defendant point to the fact that he was the consignee and that he so considered himself. What could have been the mental attitude of the defendant when the Lake Erie Fuel Corporation directed the cars delivered to him. He must have intended to receive them for himself for he immediately directed the plaintiff to place them on the siding of the United States Light and Heat Corporation. That the corporation and defendant had dealings together is evidenced by the fact that the, agreed statement of facts states: “ Came a time later when moneys-were owing from the United States Light & Heat Corporation to defendant and the United States Light & Heat Corporation deducted from these sums the amount of the charges which it had paid to plaintiff by mistake on the two refused cars, and duly assigned to the defendant its said claim for repayment.” He accepted the shipment and intended to and did deliver it to a customer. He thereupon became liable for the payment of the freight.
“ Liability for freight charges of the following persons has been established: * * *; (2) a consignee, regardless of whether or not he is actual owner, and regardless of whether or not his character as agent is disclosed by the bill of lading or is communicated to the carrier, provided he accepts the shipment.” (New York Central Railroad Company v. Sharp, 124 Misc. 265.)
Inasmuch as the defendant became Hable for the payment of the freight, the assignment from the United States Light and Heat Corporation to defendant avails nothing.
Let judgment be entered in favor of the plaintiff against the defendant in the sum of $325.32, with interest thereon from the 23d day of January, 1928, together with the costs and disbursements on this action.
