108 Misc. 329 | N.Y. Sup. Ct. | 1919
The question as to whether or not a mistake was made by the defendant in delivering the goods stored with it was one of fact which was submitted to the jury and the jury has found against the contention of the defendant. There is evidence to sustain this finding and there is no reason for disturbing it. The plaintiff’s testimony showed that his predecessor shipped from Bochester a No. 2 Kempsmith plain miller with a tag consigning the miller to itself with directions to notify the Simmons Machine Company. The receipt by the defendant for the machine delivered by the railroad company shows that the defendant received a plain miller with this tag on it, from which the jury might very reasonably conclude
Assuming this fact then, the question arises as to whom the defendant is liable, the railroad company or the plaintiff. It is liable to some one if it made a mistake in delivering the wrong machine. Why should its liability be to the railroad company? The railroad company was protecting itself under its contract and
The railroad company could not appropriate the goods without subjecting itself to liability. It performed its duty as a common carrier and under its contract its further obligation was at an end. It was thereafter requested by the owner to reship the goods and this the railroad company undertook to do. In reshipping the goods the railroad company was acting as an agent for the plaintiff's predecessor and in transporting the goods it was acting as a common carrier. The railroad company did just what it was called upon to do, that is, safely transport the goods to Albany, store them and reship the goods redelivered to it but the jury has found that the wrong goods were returned to the railroad company for reshipment. That was not the fault of the railroad company and the liability attaches to the defendant therefor. A warehouseman is liable directly to the owner under these circumstances and not to the railroad company.
The liability for the wrong delivery is an absolute one and is not dependent upon the exercise of care. 2 Am. & Eng. Ency. of Law, 754, 755, 756. If the defendant had delivered a stove instead of a miller, it is ludicrous to say that it could defend on the ground that it had exercised due care and that the plaintiff
Motion denied, with ten dollars costs to abide event.