King v. New Brunswick, Amboy & New York Steamboat Co.

Plaintiff’s assignor was the consignee of a barrel of whisky intrusted to defendant, a common carrier, for transportation from New York to South Amboy, N. J. The goods duly arrived on October 2, igoo, at the company’s dock at South Amboy, and were placed in a storeroom on the dock. The plaintiff’s assignor, one Lyons, kept a retail liquor store, and resided, with his family, in the same "building in which he carries on .business. On the evening of October 2d defendant’s agent called at Lyons’ place of business. He did not see Lyons, but did see his wife, and notified her of the arrival of the whisky. She left the barroom, and shortly returned, telling Davis, the defendant’s agent, that the goods were to remain on the dock, as her husband was not ready for them. Lyons did not send or call for the barrel, and on October 6th, without, so far as appears, any fault or negligence on the part of defendant, the whisky was stolen from the storehouse. It appears that Lyons’ wife sometimes took his place 'in the store when he was obliged to be absent. There was a dispute as to whether Davis, the company’s agent, did notify her, as he says he did. If the justice believed him, there was evidence enough to sustain the finding that he did so notify her. There is practically no dispute as to the law applicable to the case, except as to the sufficiency of the notice to the wife. The defendant’s liability as a common carrier ceased when it had safely transported the goods to the, point of destination, had deposited them on the dock, had notified the consignee of their arrival, and he had had a reasonable time, after such notice, to remove them. Thereafter its liability was merely that of a warehouseman, and, in order to sustain a recovery for the loss of the goods, proof of negligence on the part of defendant was necessary. Hedges v. Railroad Co., 49 N. Y. 223 ; Renner v. Railroad Co., 44 N. Y. 505 , 4 Am. Rep. 709 ; Tarbell v. Shipping Co., 110 N. Y. 170 , 17 N. E. 721 , 6 Am. St. Rep. 350 . In the latter case it was said:

“But a delivery which will discharge the carrier may be constructive, and not actual. To constitute a constructive delivery, the carrier must, if practicable, give notice to the consignee of the arrival; and when this has been done, and the goods are discharged in the usual and proper place, and reasonable opportunity afforded to the consignee to remove them, the liability of the carrier as such terminates. The duty of the consignee to receive and take the. goods is as imperative as the duty of the carrier to deliver. Both obligations are to be reasonably construed, having reference to the circumstances. The stringent liability of the carrier cannot be continued at the option or to suit the convenience of the consignee.”

If, then, Lyons, the consignee, was properly notified of the arrival of the goods, and did not remove them within a reasonable time, the defendant was released from its obligation as an insurer of the goods, and cannot be held liable as a warehouseman, because it did not appear that the robbery resulted in any way from its negligence. The plaintiff’s assignor allowed the whisky to remain on the dock for three days after his wife had been notified of its arrival. This, under the circumstances, was an unreasonable length of time. Knitting Co. v. Murray, 90 Hun, 554 , 558, 36 N. Y. Supp. 26 .

Judgment affirmed, with costs. All concur.