Elwell v. Fabre — 37 N.Y. St. Rep. 354

Majority

p. 354

John D. Elwell, App’lt, v. Cyprien Fabre, Resp’t.

New York Common Pleas, General Term,

Filed April 6, 1891.)

Headnote

1. Common carriers—Not excused from paying rent, although the FREIGHT HAS BEEN DELIVERED TO CONSIGNEE.

Where a common carrier agreed with plaintiff, lessee of a pier, to pay rent per diem while the pier was occupied by freight and the carrier turned the freight over to the consignee who accepted it, and the freight thereafter remained upon the pier, in an action by the lessee against the carrier for rent, Reid, that the fact that the consignee had taken possession of the freight did not excuse the carrier from payment of the stipulated rent.

3. Appeal—When the entire judgment must be affirmed or reversed.

Where in an action against a single defendant the plaintiff succeeded at the trial term upon one branch of a case and the judgment in that respect is affirmed here and said plaintiff failed at the trial upon another branch, the judgment in which respect is reversed here, the plaintiff must stipulate that the whole judgment be affirmed; if he do not, the whole judgment must be reversed.

Appeal from so much of the judgment in this action as adjudges the plaintiff is not entitled to recover upon the second •cause of action alleged in the complaint, for rent claimed by plaintiff for the use of his pier in the storage of cargo, and from an order denying plaintiff’s motion for a new trial.

Eustace Conway, for app’lt; R. D. Benedict, for resp’t.

Plaintiff, being the lessee of the Columbia pier, and defendant, operating a line of steamers, entered into a written contract for the use of the pier during the year 1888. This agreement contained the following provision: “ The parties of the second part further and in addition agree to pay to the party of the first part twenty-five (25) dollars for each day outward cai-go, above the bulk of 200 barrels, for any of their steamers is on said pier previous to its arrival, and twenty-five (25) dollars each day inward or outward cargo remains on the pier after departure from, the pier for sea of any of their steamers, but a small quantity remaining on the pier after departure of steamers, say up to the bulk of 200 barrels, not to count if the pier is not employed for another steamer.”

On November 2d, defendant's steamer “ Burgundia ” arrived with a quantity of pomegranates and grapes, consigned to Pebrici & Story, which were discharged upon the pier, and there remained until December 28, the steamer having again left port on November 11th. For November 12ih, 13th, 14th, 15th and 16th, defendant paid the stipulated sum for the storage of these pomegranates and grapes, but declines to pay for the succeeding days, on the ground that on or before November 16th the merchandise had been turned over to and accepted by the consignees, and that he was thereafter discharged in respect to this merchandise from any further liability for the use of the pier. Plaintiff thereupon commenced this action to recover, among other things, the stipulated sum for the use of his pier from November 17th to December 28th, both inclusive, a period of forty-two days, which, at twenty-five dollars per day, amounted to $1,050, and on the trial the defendant was permitted to introduce evidence tending to show that some time prior to November 16th the consignees assumed the custody of the pomegranates and grapes and removed a part thereof, the bulk, however, remaining on the pier for the period stated. The court charged the jury that “ when a common carrier delivers the goods according to the terms of the bill of lading, and notifies the consignee at the port of arrival, and the consignee exercises any act of ownership over them, the liability of the common carrier ends.” This of course as a proposition of law is true, but clearly it can have reference only to the relations of the common carrier and the consignee and the liability of the former to the latter respecting the goods, and can in no wise affect the liability of the common carrier upon his promise to pay rent to a third party for the storage of goods earned by him and discharged upon premises let to him for that purpose. The proposition of law contained within this part of the charge had no application, therefore, to the facts of the case. It was misleading and we cannot say that the jury was not influenced thereby to the prejudice of the plaintiff. Greene v. White, 37 N. Y., 405 , 407 ; Harding v. Barney, 7 Bosw., 353 , 362.

Again, the court charged substantially that the defendant was not liable if the jury found from the evidence that the pomegranates and grapes had been delivered to the consignees and left by the latter upon the pier. This was erroneous, since the de

p. 356

fendant’s liability to pay rent for cargo deposited on the pier could in no manner have been impaired by the failure of the consignees, who had no relations with the plaintiff, to remove the merchandise agreeably to an understanding between such consignees and the defendant, in the absence of proof that the plaintiff with knowledge of the delivery to the consignees assented to their further use of the pier for the storage of the merchandise.

The exceptions to the charge above referred to are sufficient to call for a reversal, but under the ruling of the court of appeals in Goodsell v. The Western Union Telegraph Co., 109 N. Y., 147 ; 15 N. Y. State Rep., 73, we feel compelled to direct a reversal of the entire judgment, unless plaintiff consents to affirmance upon this appeal.

Judgment reversed, new trial ordered, costs to abide event, unless plaintiff files a stipulation consenting to an affirmance thereof, in which event that part of the judgment which is affected by this appeal is affirmed with costs to defendant, respondent herein.

Allen and Pryor, JJ., concur.