Reynolds v. New York Central & Hudson River Railroad — 21 N.Y. St. Rep. 319

Majority

p. 319

Kate C. Reynolds, App’lt, v. The New York Central and Hudson River Railroad Co., Resp’t.

(Supreme Court, General Term, Second Department,

Filed December 10, 1888.)

Headnote

Common cabbieb—Misdeliveby of goods.

The plaintiff, a married woman, brought this action against the railroad company for the value of certain furniture ilelivered to the railroad for carriage. It appeared on the trial that plaintiff's husband delivered the-goods and took the receipt, which he gave to plaintiff. At their destination they were delivered to a carman, who produced the receipt, it having been given by plaintiff’s husband. After the goods were taken to a salesroom and exposed for sale, the plaintiff saw them and made no objection, and the goods were sold and plaintiff’s husband got the money. The husband had sold other goods through the same salesman and got the-money by plaintiff’s authority ; and on one occasion, in the presence of' her husband, she asked for the proceeds of the sale. As against this, there is only the testimony of the plaintiff that she did not give the receipt to her husband, and that she supposed the salesroom was a railroad storehouse. Held, that the complaint was properly dismissed, there not being sufficient evidence to sustain a verdict for plaintiff.

Appeal from a judgment entered upon the dismissal of the complaint at a circuit court of Kings county.

Charles S. Noyes, for app’lt; Frank Loomis, for resp’t.

The court was called upon to dismiss, the complaint upon the plaintiff’s own showing. Such a course is justified when upon the evidence a verdict upon it in favor of the plaintiff would be set aside.

The plaintiff was the wife of one Reynolds. The husband packed up certain articles of furniture belonging to the plaintiff and delivered them to the defendant to be carried to Peekskill. Reynolds left the receipt for the property with the plaintiff. Subsequently a carmon presented the receipt for the pronertv and took it to the salesroom of Mr. Lent in Peekskill. The plaintiff subsequently

p. 320

saw it there exposed for sale, and made no objection. Reynolds delivered the receipt to the carmon. Reynolds .got the money on the sale.' He had admittedly sold other things for his wife and got the" money by her authority, through the same- seller of furniture, of Mr. Lent. As ■against this testimony there is only the evidence of the plaintiff that she did not give the receipt to her husband, and that she supposed Lent’s store was a railroad storehouse. On one occasion she asked for the proceeds of «orne of the sales in company with her husband.

A verdict for the plaintiff ought not to stand upon the testimony upon the part of the plaintiff, and the judgment should, therefore, be affirmed, with costs.

All concur.