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Rodbell v. Gotham Despatch & Express Co.

111 N.Y.S. 528 Court N.Y. App. Term Decision date 1908-06-30 English

Delivered by MacLEAN, J.

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p. 528
RODBELL v. GOTHAM DESPATCH & EXPRESS CO.
(Supreme Court, Appellate Term.
June 30, 1908.)

Headnote

Appeal and Error—Questions Not Raised in Lower Court—Review.
In an action against a carrier for loss of goods In course of transportation, defendant, having admitted plaintiff’s .ownership of the goods by failing to deny such ownership in the trial court, cannot complain on appeal that plaintiff failed to show such ownership.
[Ed. Note.—For eases in point, see Cent. Dig. vol. 2, Appeal and Error, ' § 1066.]
Appeal from Municipal Court, Borough of Manhattan, Ninth District.
Action by David Rodbell against the Gotham Despatch & Express Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Argued before GILDERSLEEVE, P. J., and MacLEAN and SEA-BURY, JJ.
Moses Morris, for appellant.
Murphy & Fultz, for respondent.

Admitting, by not denying, ownership in the plaintiff of certain coats committed by him to it, a common carrier, to be delivered to another, the defendant admitted the competency of the plaintiff to bring this action, taking the case out of the rule in Krulder v. Ellison, 47 N. Y. 36 , 7 Am. Rep. 402 ; and so, the value of the goods and their loss being conceded on the trial, on the one hand, and the counterclaim, on the other, there remained only rendering a judgment for the plaintiff, and no cause for appeal.

Judgment affirmed, with costs. All concur.

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