Morel v. Stearns — 74 N.Y.S. 1138

Majority

p. 1138

MOREL et al., Appellants, v. STEARNS et al., Respondents.

(City Court of New York, General Term.

December, 1901.)

Headnote

Action by Marie Joseph Ememond Morel and others against John M. Stearns and others.

Norwood & Dilley (Walter E. Cooke, of counsel), for appellants.

Hitchings, Paliiser & Moen (Hector M. Hitchings, of counsel), for respondents.

The defendants agreed to purchase from plaintiffs 20 bales of silk, deliverable in April or May. All were duly delivered, except 6, which were offered and refused by defendants on June 1st. On May 31st, plaintiffs gave to a truckman papers that would enable him to receive the silk in question from the customs officials, but he did not remove same from the dock until the morning of June 1st. Upon the trial the complaint was dismissed, and thus this appeal. We think the ruling was correct. The contract plainly reads, “Deliverable in April and May, 1900.” The plaintiffs contend that, because they delivered the necessary papers to get the goods off the ship on May 31st to a common carrier, such act constituted a delivery to defendants. We are against such proposition. The common carrier was plaintiffs’ agent, and his neglect to deliver to defendants on May .31st was plaintiffs’ neglect. Although no place was fixed in the. contract to make deliveries, yet the writings and acts of both parties show that plaintiffs were to do so at any reasonable place fixed by defendants. In this instance defendants instructed plaintiffs to make such delivery at their business place, 68 Green street, this city, and to do so on May 31st, which was not done. We think thereupon the judgment must be affirmed, with costs to respondents. Judgment affirmed, with costs to respondents.

DELEHANTY, J., concurs.