Ryer v. Pennsylvania R. Co. — 56 N.Y.S. 1083

Majority

p. 1083

(26 Misc. Rep. 715.)

RYER et al. v. PENNSYLVANIA R. CO.

(Supreme Court, Appellate Term.

March 24, 1899.)

Headnote

Carriers—Loss or Goods. •

Plaintiff, after shipping goods over defendant’s line, made a written-request that defendant use all available means to stop the articles before-delivery to the consignee, and return them to plaintiff; “the full meaning and intent of this agreement being that you are to act as our agent in this transaction.” Only part of the goods were returned, but there-

p. 1084

was no evidence to show that more of them had been found, or that defendant was negligent. Held, that plaintiff could not recover.

Appeal from city court of New York, general term.

Action by James B. Ryer and another against the Pennsylvania Railroad Company. Prom a judgment of the general term reversing •a judgment for plaintiffs ( 54 N. Y. Supp. 583 ), they appeal.

Affirmed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.

Campbell & Murphy, for appellants.

Robinson, Biddle & Ward, for respondent.

It was alleged in the complaint that in 1889 the plaintiffs delivered to the defendant, a common carrier, certain merchandise, to be delivered to a furniture company at Ft. Scott, Kan.; that, before the delivery of the goods to the consignee, plaintiffs instructed the defendant to return the goods, which defendant undertook to do, receiving payment for such shipment and return, but it neglected to return or deliver the goods mentioned. In its answer the defendant admitted receipt of the goods as common carrier, and said that after the goods were delivered by the defendant to another company, at some point in the state of Illinois, the defendant was notified to return the same to the plaintiffs, and subsequently did return certain of the goods, which were accepted by the plaintiffs; but it denied any agreement or undertaking safely to transport the goods on the return, and also any negligence on its part. An employé of the plaintiffs testified that he went to the office of the defendant; there requested the return of the goods; was asked to make out an application, which he did; and was told “that they would see that the goods were returned if found.” The application, offered in evidence by the defendant and admitted by the plaintiffs’ counsel, was a request to use all available means to stop the articles before delivery to the consignee, and return them to the plaintiffs.. It closed with: “The full meaning and intent of this agreement being that you are to act as our agent in this transaction.” Under this application, the defendant company procured the return of certain merchandise, which was offered and delivered to the plaintiffs, who claimed that less than the original shipment was returned, and that part of it was damaged; but there was no evidence showing, or tending to show, that more goods had been found, or to show negligence or lack, of diligence on the part of the defendant, whose special services the plaintiffs had requested when they employed it as their agent.' The judgment of the general term should be affirmed, with costs.

Judgment affirmed, with costs.

FREEDMAN, P. J., concurs. LEVENTRITT, J., concurs in result.