Neville v. Pennsylvania & West Virginia Co. — 113 A.D. 768

Majority

p. 768

Michael K. Neville, Appellant, v. The Pennsylvania and West Virginia Company, Respondent.

Second Department,

June 8, 1906.

Headnote

- Cdixtition'carrier — shipper cannot counterclaim sums-for which'he'was liable to reimburse the carrier if advanced by the .latter.

When according-tira custom it is"usual "fora carrier to 'advance-certain towing charges-for which thershipper reimburses him., a-shipper Who has himself paid such charges cannot in' an action on another transaction .set-the . same up-¡as a ■. counterclaim-against the carrier,, for he has only paid his own debt,

Appeal by the plaintiff, Michael IL Neville; from a judgment of the Court of the city of New York, borough- of Brooklyn, in'favor of tlie plaintiff, rendered on the.28th day of September, 1905. - ' ' ' . . ■; . ■ •

H. B. Philbrook, for the appellant.

Franklin D. Peale, for the respondent.

The plaintiff’s claim of thirty-five dollars and seventy cents for freight charges on a cargo of coal carried for the defendant by the plaintiff from Port Liberty, N. J., to Harrison street, Brooklyn, was admitted, and a counterclaim was interposed for twenty dollars and fourteen cents for advance charges claimed to have been paid by the defendant for the benefit of the plaintiff on a similar cargo which the plaintiff had contracted to carry for the defendant from Perth Atnboy, N. J., to Coney Island, N. Y., some two years before. The evidence of the defendant in support of the counterclaim tended to show that the railroad companies make certain charges for so-called “ trimming ” and towing in connection with the loading of boats, and that- it is the custom of the port for the boat owner to pay such charges and to include them in the freight charges collected of the shipper; that the plaintiff contracted to carry a cargo of coal for the defendant from Perth Amboy, N.. J., to Coney Island; that the defendant paid said advance charges to the railroad company, amounting to twenty dollars and fourteen cents, which otherwise, according to the custom of the port, the plaintiff, after paying, wóuld have collected from the defendant, with his freight charges, and that the boat sunk at the wharf while being loaded, for which reason the cargo was never delivered. No claim is made that the plaintiff was guilty of any fault, and the only theory by which the counterclaim was sought to be sustained was that the money was paid for the plaintiff’s benefit, but obviously this position is untenable. The money was paid by the defendant for its own benefit. The custom which regulated the process by which the payment was made, did not vary the fact that it was the defendant’s debt, and not the plaintiff’s, and it could matter little whether the defendant reimbursed the pláintiff after he had paid the charge or whether it advanced the money in the first instance. ■ • -

The justice, therefore, erred in allowing the counterclaim, and'for such error the judgment must be reversed and a new trial ordered, costs to abide the event. -

Hirschberg, P. J. Woodward, Gaynor and Rich, JJ., concurred.

Judgment of the Municipal Court, reversed and' new trial ordered, costs to abide the event.