68 N.Y.S. 217 | N.Y. App. Div. | 1901
The plaintiffs are copartners doing a wholesale liquor business in the city of New York. One Lewis was employed by plaintiffs in soliciting orders for whisky, and sent such orders to plaintiffs every month. The plaintiffs received from Lewis an order of Mrs. Felix Zinck for one barrel of Old Cabinet whisky, and on the 2d day of June, 1897, they shipped and consigned the said whisky by the Delaware, Lackawanna and Western Railroad Company to Mrs. Felix Zinck, Ithaca, N. Y. The barrel of whisky arrived at the freight house of the railroad company in Ithaca on the fourth day of June, and the agent of the railroad company put the freight bill in a pigeon hole, he maintained, bearing the name of the defendant, and to which the defendant had access. Felix Zinck and his wife lived together in Ithaca, and Mr. Zinck owned and conducted a saloon which was situated on the first floor. Under the saloon was a cellar with a door opening in the rear of the building, and over the saloon was a public dining room connected with the saloon by a dumb waiter. The living rooms of Mr. and Mrs. Zinck were on the second floor of an adjoining building and were connected by a door with the public dining room, and had a separate entrance from the street. Mrs. Felix Zinck had nothing to do with the saloon business, and very seldom entered the saloon. The defendant is a drayman in the city of Ithaca, and one of his employees, while engaged in the regular course of the business of the defendant, took the freight bill from the pigeon hole, and thereupon took from the railroad company the barrel of whisky, and without making any inquiry as to where it should be'delivered put it in the Felix Zinck cellar by way of the rear entrance and at the place where Mr. Zinck kept his beer. He did not see Mrs. Zinck, but at the time of such delivery saw either Mr. Zinck or the bartender. The bill for freight was paid by the defendant to the railroad company. The whisky was used by Mr. Zinck in his saloon. It does not affirmatively appear who ordered the whisky, but Mrs. Zinck never saw Lewis, the salesman, and never ordered the whisky, and never knew of its delivery. Plaintiffs at the time they shipped the whisky mailed a bill to Mrs. Zinck, and on the 1.1th day of April, 1898, mailed her a letter calling her attention to the bill and saying that unless they heard from her by April eighteenth they would make
: Every bailee is bound; at his peril, to know that the person to whom he delivers the chattel is the proper person to. receive it, and if he delivers it to the wrong person, though acting in perfect :good faith, he is nevertheless liable for its conversion. ■ (3- Am. & Eng. Ency. of Law [2d ed.], 754.) At the ■ close of the trial plaintiffs asked the court to direct the jury- to find a verdict in their favor, which, was denied. The court in' submitting the case to the jury used this language: “ The single, question which the court. submits to the jury is as to whether there was a delivery of the barrel of whisky by defendant to Mrs. Felix Zinck. Concededly the barrel of whisky was addressed to Mrs. Felix Zinck, and the plaintiffs had a-right to have the barrel delivered to whom it was'directed, and as I say, the important question in the case is whether this barrel of whisky was- delivered to Mrs. Felix Zinck or to her duly authorized agent. If it was, then the plaintiffs, have no cause of action, but if it wasn’t delivered by the defendant to Mrs. Felix Zinck, then the plaintiffs have á cause of action,, and are entitled to recover the value Of the whisky.” The law was correctly stated by' thé court, but there was no evidence to justify- the submission to the jury of the question of fact, or to uphold the verdict in favor of the defendant. The respondent contends that, in addition to the facts stated,, it was shown on the trial that Mrs. Zinck sometimes waited on guests in the public dining room with liquors'sent up from the saloon, and that mail directed to Mrs. Zinck and groceries used in cooking, by hei; were-delivered in the saloon-and sent up to her through the dumb waiter, and that this justified the court in submitting the case to the jury. If the defendant had shown that it Was the custom of draymen to deliver to Felix Zinck or his barkeeper whisky and beer consigned to Mrs. Felix Zinck, and that Mrs. Zinck had, knowledge of such deliveries, a question of fact as to the delivery of the whisky Would have been presented for the jury to', determine, 'notwithstanding hei* denial of' authority in them ■ to receive whisky ;so
• Judgment and order reversed and a new trial granted, costs to appellants to abide the event.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellants to abide event.