Platt v. Hibbard

7 Cow. 497 | N.Y. Sup. Ct. | 1827

*[Sutberland, J.

But there is another difficulty in this case. Though the defendants had a wharf, it does not necessarily follow that they were wharfingers in respect to the goods in question. They had a store upon the wharf *in which the goods were deposited, not as a wharf, but a store. It seems to me the defendants are to be considered as warehousemen. Ho duty as wharfingers had attached ■ to them.]

*[Woodworth, J. It cannot be that these defendants were liable as wharfingers; and it, therefore, becomes unnecessary to consider the distinction which you urge. Your argument goes to make every storing and forwarding *merchant in our cities wharfingers. It certainly can make no difference in principle, whether they receive goods into a store which happens to stand upon a wharf, or in the body of the city.]

[Savage, Ch. J. The attempt to fix the defendants in the particular character of wharfingers, as distinguished from warehousemen was not made at the trial; and there does not appear to be any count in the declaration charging them in that character.]

IN THE SUPREME COURT Collier. We suppose the count against them as common - carriers sufficient to reach them as wharfingers; provided we show that the latter stand on the

same ground with the former. The Court were clear, that a case of wharfingers

was not made out; and Sutherland, J., said, if that case had been made out, he could see no reason for making the defendants liable as common carriers. He declined, however,

to decide this question; and The Court agreed in considering the case as one of ware- housemen, who are not liable

if they exercise