Nebenzahl v. Fargo — 22 N.Y. St. Rep. 231

Majority

p. 231

Isaac Nebenzahl, Resp’t, v. James C. Fargo, as President of the American Express Co., App’lt.

(New York Common Pleas, General Term,

Filed February 4, 1889.)

Headnote

Common carrier—Liability to consignor on delivery oe goods to a STRANGER.

Where a common carrier delivers goods to a stranger without requiring evidence of identity, it is liable to the consignor for their value. It is bound to deliver them either to the consignee or his agent, and if to the agent, it must be prepared to show the authority of the agent to receive them, if that is disputed.

Appeal from a judgment of the ninth district court in favor of plaintiff. The action was for damages for the loss of a certain package of goods delivered by plaintiff to the company at the city of New York, addressed to Mrs. C- P. Frankel, Saugerties, N. Y., for carriage and delivery as addressed. The testimony of Mrs. Frankel is that she never-

p. 232

ordered the goods, never received them; or knew of their delivery, and that she never gave authority to any person to order or receive them for her. The testimony of the driver, who had been in the employ of the company but four days, and had never previously been in the express business, was that he tendered the package to Mrs. Frankel, :and she refused to accept it; that he afterwards took the package to her store, and gave it to a man there, who he afterwards learned was Warschofsky; that he received, paid the expressage, and signed for it in his own name. He did not inquire for his authority to receive it, nor did he ask for Mrs. Frankel. The delivery was made in the day time, and the package was a large one. The door between the store and the building back of it, in which the Hrankels lived, was open, and there were some ladies in there, who could see into the store.

Hamilton Cole (H. F. Hewson, of counsel), for app’lt; Kleibisch & Marks (M. S. Marks, of counsel), for resp’t.

—The plaintiff delivered to the defendants, an express company, a package to Mrs. C. Frankel, Saugerties, N. Y., which they agreed to carry and .safely deliver to her. The package was tendered by the • defendants to Mrs. Frankel at her place of business in Sau.gerties, and she refused to receive the same or pay the , expressage thereon, on the ground that she had not authorized the purchase of it.

Afterwards a daughter of Mrs. Frankel went to defendant’s office at Saugerties and directed that the package be :seiit to her at her mother’s place of business, but it is not shown that this was done by the authority of the mother. The defendant thereupon delivered the package at Mrs. Frankel’s place of business to one Warschofsky, without making any inquiry as to whether he was authorized to receive it for Mrs. Frankel; he receipted it in his own name and not in hers. There is no evidence that Warschofsky was Mrs. Frankel’s agent for that purpose or that he was authorized to receive it for her; nor is there any evidence that he was in the store by Mrs. Frankel’s authority. Nor are there facts and circumstances shown from which the court was bound to infer that he was her agent. Where a common carrier delivers goods to a stranger without requiring evidence of identity, it is liable to the consignor for their value. Price v. Oswego and Syracuse Railroad Co., 50 N. Y., 213 . It is bound to deliver the goods to the consignee or his agent, and if to the agent, it must be prepared to show the authority of the agent to receive it, if that is disputed. Witbeck v. Holland, 45 N. Y., 18 . It was in this case, and the justice was fully justified by the evidence, in arriving at the conclusion he did upon that subject.

The judgment must therefore be affirmed, with costs.