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Wertheimer v. Wells, Fargo & Co.

112 N.Y.S. 1062 Court N.Y. App. Term Decision date 1908-11-24 English

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p. 1062
WERTHEIMER v. WELLS, FARGO & CO.
(Supreme Court, Appellate Term.
November 24, 1908.)

Headnote

'Carriers (§ 76*)—Carriage of Goods—Action for Failure to Deliver—Title—Presumptions.
Where a shipment is delivered to a carrier; the presumption is that title then passes to the consignee, and- the consignor cannot maintain an action for failure to deliver, in the absence of proof to rebut the presumption and show title in himself.
[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 263; Dec. Dig. § 76.*]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Nathan Wertheimer against Wells, Fargo & Co. Judgment for plaintiff, and defendant appeals.
Reversed, and new trial ordered.
Argued before GIRDERS REEVE, P. J., and MacREAN and SEA--BURY, JJ.
Alexander & Green (W. C. Prime; of counsel), for appellant.
■Gainsburg & Solomon, for respondent.

This is an appeal from a judgment for the sum of $18.60, damages and costs, in favor of the plaintiff. The only witness examined upon the trial was Nathan Wertheimer, the plaintiff, who testified that on December 26, 1907, he delivered to defendant at one of its Jersey City, N. J., offices, a bundle containing 140 pounds ■of fat, which was worth $16.80; that he wished to ship this fat to his brother, Philip Wertheimer, Scranton, Pa.; and that he received a receipt, which shows that the package in question was, in fact, consigned to said Philip Wertheimer. Plaintiff also stated that he told defendant’s employé that the fat never was delivered to the consignee, but there is no direct proof of such nondelivery. There is no evidence, that title to the fat is in plaintiff, as the presumption of law is ■that the title passed to the consignee upon delivery of the fat to the ■carrier, and no evidence is offered to rebut this presumption. Defendant moved at the end of the case to dismiss the complaint, which motion under the evidence presented should have been granted.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.