Davidson v. Cunard Steamship Co. — 134 A.D. 288

Majority

p. 288

Raitchel Davidson, Respondent, v. Cunard Steamship Company, Limited, Appellant.

Second Department.

October 12, 1909.

Headnote

Carrier — action to recover for loss of baggage — practice — direction of verdict for defendant — dismissal should be on merits.

Action against a carrier to recover for loss of baggage. Evidence examined, and held, sufficient to sustain a finding that the defendant bad delivered to the plaintiff all baggage received from her.

A verdict directed by the court after motion by both parties is of the same effect, as one rendered by a jury upon a submission of the case. Hence, it is upon the merits, and a justice of the Municipal Court has no power to make a subsequent order providing that a judgment for the defendant shall bo without prejudice to a new action, if there be no holding that the verdict directed by him was contrary to the evidence or to the-law.

Appeal by the defendant, the Cunard Steamship Company, Limited, from an order of the Municipal Court of the city of New York, bearing date the 27th day of April, 1909, vacating a judgment and granting a new trial.

Charles D. Miller, for the appellant.

Lewis A. Rosen, for the respondent.

The action is that of passenger against common carrier for loss of baggage. At the close of the plaintiff’s evidence, and again at the close of the case, motions were made by the defendant for a dismissal of the complaint, which were denied. After the defendant’s motion for a dismissal at the cloáe of the evidence had been denied, both sides moved for a direction of a verdict, whereupon the court reserved decision and later rendered a judgment for the defendant on the merits.

The plaintiff took passage on one of the defendant’s ships at Liverpool. She claimed that she had two pieces of baggage, a box And a hale, and that the box only was delivered to her on her-arrival At New York. While she claimed a special contract by virtue of the payment of two dollars for excess baggage, her evidence

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showed that the charge for extra baggage was for .'the box alone and was made after her arrival at her destination, but before the delivery of the box. She claimed that the bale contained a baby carriage, a cradle, bedding, silver spoons and articles of clothing. It is doubtful if any of the articles except the clothing could properly be classed as baggage. -There was no evidence to show the value of the clothing, and, while there was some evidence to show the original cost of some of the articles, there was not sufficient evidence to show the value of any at the time of the loss. It would have been permissible for a jury to find upon the evidence that the defendant delivered to the plaintiff all of the baggage which it had received.

Section 254 of the Municipal Court Act specifies the grounds upon which the. verdict of the jury may be set aside, br a judgment vacated, amended or modified, i. e., “ upon the exceptions taken at the trial, or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence, or contrary to law.” The sole ground upon which the order appealed from was made as therein recited was that the judgment should have been without prejudice to a new action. But the judgment was not one of non-suit. A verdict directed by the court must have the same effect as one rendered by the jury upon the submission of the case to them. A judgment on the merits would have to be entered on such a verdict. The Municipal Court justice did not decide that the verdict, in theory directed by him, was contrary to the evidence or the law. It follows that the judgment on the merits was properly entered and that the Municipal Court justice had no power to grant the motion on the ground stated in the order:

The order appealed from is reversed.

Jenks, Gaynor, Burr and Rich, JJ., concurred.

Order of 'die Municipal Court reversed, with costs, and judgment reinstated. j