121 Misc. 816 | City of New York Municipal Court | 1923
On June 23, 24 and 25, 1921, the plaintiff’s assignor shipped in three shipments a number óf cases of store fixtures consigned to the Stetson Blouse Shop at San Antonio, Tex. The defendant was the carrier. Two shipments arrived at San Antonio on June twenty-eighth and one on June twenty-ninth. The Stetson Blouse Shop, which had just started in business, was not ready to receive the shipments and, at its request, the cases were not delivered but were held by the defendant in the on-hand department of the freight station at San Antonio. The Stetson Blouse Shop became insolvent. The plaintiff’s assignor learned of this insolvency and on July 20, 1921, wired the defendant at San Antonio not to deliver the goods at the Stetson Blouse Shop. On July twenty-first the defendant answered by saying that the shipments were still on hand and asked for instructions for the disposition of the same. On the next 'day, July twenty-second, the defendant again wired the plaintiff’s assignor to the effect that the Stetson Blouse Shop was ready to accept the merchandise and requested instructions as to its disposition. The plaintiff’s assignor then endeavored to ascertain from the receiver of the Stetson Blouse Shop whether it would accept the goods and pay cash for them. On August 9, 1921, the plaintiff’s assignor sent a
It is not necessary, in my opinion, to pass upon the other questions involved in this case. Enough has been shown, I think, to demonstrate that the plaintiff has failed to establish a cause of action. It has so failed because, first, a demand was made for a service which was not provided for in the filed classifications and schedules, and second, because it did not comply with the provisions of the classifications for the service therein provided, and which provisions are conditions precedent to the obtaining of the service.
The plaintiff relies upon the case of Hirsch v. Platt, 89 N. Y. Supp. 362. It is very evident that this case is not applicable to the facts of the one at bar. It was a case decided long before the federal enactment applicable to the present situation was passed by the congress. Furthermore, in that case it clearly appears that a demand was made upon the defendant for the return of the shipment by the same agency, namely, the defendant; that the shipment was moved on its outward journey. The plaintiff also lays stress upon the contention that it was the duty of the defendant to notify the plaintiff’s assignor that the consignee refused to accept the goods. It appears, however, from the evidence that the consignee never refused to accept the merchandise, but that it requested the defendant to keep the goods in its on-hand department until it was in a position to take the merchandise. Before such notification was received by the defendant the Stetson Blouse Shop became insolvent, and the plaintiff’s assignor thereupon exercised his right to stop the delivery of the merchandise to the consignee.
After a careful review of the evidence I can find no theory of liability upon which the defendant might be held responsible for the loss of these shipments under the cause of action as set forth in the plaintiff’s complaint.
At the close of the plaintiff’s case, and again at the close of the entire case, motions were made to dismiss the complaint, upon which decision was reserved. The case was then allowed to go to the jury on certain questions of fact, which, upon reflection, are immaterial to the questions of law involved. The verdict of the
Five days’ stay of execution.
Ordered accordingly.