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Lustig v. International Nav. Co.

78 N.Y.S. 885 Court N.Y. City Ct. English

Judges Argued before DELEHANTY and O’DWYER, JJ.

Delivered by *886 DELEHANTY, J.

Contents

Majority

p. 885
(38 Misc. Rep. 802.)
LUSTIG v. INTERNATIONAL NAV. CO.
(City Court of New York, General Term.
June, 1902.)

Headnote

1. Baggage — Delivery to Carrier — Evidence—Sufficiency.
Evidence examined, and held insufficient to show that plaintiff’s baggage was ever delivered to defendant carrier.
2. Same — Burden of Proof.
The burden is on a passenger seeking to hold a carrier liable for her baggage to prove a delivery thereof to the carrier.
Appeal from trial term.
Action by Dora Lustig, by Moses Lustig, her guardian ad litem, against the International Navigation Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.
Reversed.
Argued before DELEHANTY and O’DWYER, JJ.
Robinson, Biddle & Ward (Charles M. Hough, Norman B. Bucher, of counsel), for appellant.
John Bogart, for respondent.

The judgment and order appealed from must be reversed. The conceded question in the case, upon which all others hinge, is whether the defendant ever received into its care the baggage in question. If there was no delivery to it, there could be no liability, for such only attaches from the time of delivery and acceptance. Grosvenor v. Railroad Co., 39 N. Y. 34 . The most favorable inference to be drawn from the testimony in aid of plaintiff’s contention that there was a delivery brings it far from the point of connection. The plaintiff’s own testimony is to the effect that when she arrived at iVntwerp she took the receipt or bill of lading which she had received for her baggage at Slatro when she commenced her journey, and gave it to the trainman, who in return gave her a freight receipt for same. This was in the railroad station, and then and there she says she saw her baggage. This freight receipt purports upon its face to have been issued by the Imperial Royal Austrian Government Railways, and on the reverse thereof is written, “Baggage will follow as soon as it arrives,” and stamped, “Red Star Line, Antwerp, May 25th, 1901, Baggage Department.” While it is conceded that the Red Star Line is part of the defendant corporation, yet I have searched the record in vain to discover authority in any one to place its stamp in writing upon the back of that paper; and yet it in itself is relied on to connect and bind defendant in this case. There is not a vestige of evidence of delivery to defendant, and the very paper relied upon negatives the proposition. For, even assuming the stamp and writing in question were regularly placed thereon by defendant’s duly authorized agent, the evidence shows that at the time it was done there had been no- delivery. The burden was on the plaintiff to show a delivery, and, until she did so, defendant could not be made responsible for the baggage in question. Aikin v. Westcott, 123 N. Y. 363 , 25 N. E. 503 . The motion to dismiss should have been granted, and for the error thus committed the judgment and order appealed from must be reversed and a new trial granted to appellant, with costs to appellant to abide the event.

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

O’DWYER, J., concurs.

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