Aiken v. Westcott — 16 N.Y. St. Rep. 600

Majority

p. 600

Tames C. Aiken et al, App’lts, v. Robert E. Westcott, as President, etc., Resp’t.

(New York Court of Common Pleas, General Term,

Filed May 18, 1888.)

Headnote

1. Master and Servant—When delivery to servant is delivery t» MASTER.

This action was brought to recover the value of a trunk and its contents.

p. 601

The defendant is engaged in an express business, and in the pursuit of such business is alleged to have received the property in question, and failed to deliver it, Held, that delivery of the property in question to the servant of the defendant authorized to receive it, was delivery to the defendant.

2. Contract—What constitutes breach of.

Held, that proof of delivery of the property to the defendant and of the check for it was sufficient to support a verdict for the plaintiff.

Appeal from judgment of this court entered upon dismissal of complaint.

This action was brought against the Westcott Express Company to recover the value of a trunk and its contents. The trunk had been checked through to New York city from Detroit, by the Michigan Southern and New York Central and Hudson River Railroad Company, and checks for the trunks were delivered on the latter road to the defendant’ s agent by the plaintiff’s salesman, Hudson, who had received the checks in Detroit.

The question on this appeal is whether there was evidence of an actual delivery by the railroad company to the express company (the defendant) of the tranks.

Abbott Bros., for app’lts; E. L. Hamilton, for resp’t.

There was evidence that the defendant’s employees received the two trunks. It is proved that they received one trunk and delivered it to plaintiff. There is no doubt that they received the other trunk at the same time.

The witness Delaney,defendant’s employee,identified two trunks which were evidently the two in question. There was certainly sufficient evidence to require a submission of the question to the jury.

The delivery of these trunks to Delaney was a delivery to the defendant. He with other laborers or porters were employed by the defendant to handle the baggage that came out of the cars on the incoming trains at the depot of the railroad in New York city. They helped to unload the baggage. It was their duty to and they did, receive every piece of baggage as it came in and put a tab on it and placed it in its proper place, and when the checks came in, to deliver it. This was all done on the premises of the railroad company, that is to say, in the depot of the company, but the persons into whose charge the property was given were not the servants of the railroad company, but of the defendant. That baggage was delivered into the custody of defendant’s employees, placed there by defendant to receive it, and, therefore, was placed in the custody of the defendant. The defendant retained the custody of it until they received checks for it.

p. 602

The trunks in question arrived at the depot in New York city on the evening of December 29, 1884, and were then and there delivered by the railroad company in the manner above stated to the above-mentioned employees of the defendant. The checks were delivered the next day, December 30, 1884, on the train to New York, when near Poughkeepsie, by Hudson, to the agent of defendant, whose duty it was to solicit on the train orders for the delivery of baggage from passengers and to receive from them checks for the same.

We have, therefore, evidence showing that on December 29, 1884, the defendant received into its custody the plaintiff’s property and the next day received the checks for it and undertook to deliver it to plaintiff.

Uncontradicted, this evidence would have supported a verdict for the plaintiff. It was for the defendant to explain why both trunks were not delivered.

The judgment should be reversed, and a new trial ordered, with costs to abide event.

Allen and Larremore, JJ., concur.