Leinkauf v. Lombard — 43 N.Y. St. Rep. 74

Majority

p. 74

Joseph A. Leinkauf et al., Resp’ts, v. Josiah Lombard et al., App’lts.

(New York Superior Court, General Term,

Filed January 11, 1892.)

Headnote

Careiees—Loss OF GOODS.

In an action for the loss of goods shipped on a vessel of a steamship line operated hy defendants, the evidence was conflicting on the questions whether there was a binding contract to insure the value of the goods without a previous declaration of their value; whether the vessel was seaworthy, and whether defendants were interested in the management of the steamship line as individuals or as officers of a corporation. Held, that the case was properly submitted to the jury, and that their verdict, in the absence of error, was conclusive.

p. 75

Appeal from judgment entered, in favor of the plaintiffs upon the verdict of a jury, and from order denying defendants’ motion for a new trial.

John A. Beady, for app’lts; Horace M Beming, for resp.’ts.

controversy in this case arose out of the contract made by the plaintiffs with an agent of the New York & Mobile Steamship line for the transportation of certain goods by that line from New York to Mobile. Under this contract the goods were placed on board of the Yidette, one of the steamers of said line, which started from the port of New York bound for Mobile and was lost at sea. The action was brought to recover the value of the goods. The New York & Mobile Steamship line was a common carrier, for hire, between New York and Mobile, but was not a corporation, as its name might imply.

Upon the trial the real controversy was narrowed down to three questions, namely:

1. Whether there was a binding contract on the part of the steamship line to insure the value of the goods without any declaration of their value before the sailing of the Yidette, and if so, whether there was a failure of the steamship line tp perform it.

2. Whether the Yidette was or was not seaworthy, and

3. Whether the defendants were associated in the control and management of the steamship line as individuals or in their corporate interests and acting as officers of a corporation known as lombard, Ayers & Go.

There was a mass of conflicting testimony on each of these questions and each of them was submitted to the jury.' Upon the whole case there was sufficient evidence to call for such ,a submission. It would have been error to dismiss the complaint or to direct a verdict for the defendants.

The disputed questions of fact were submitted to the jury under instructions which, taken together, fully and fairly guarded every right which the defendants had, and the jury having determined the questions submitted to them in favor of the plaintiffs, their verdict, in the absence of error, should be held conclusive. An examination of the exceptions taken discloses no error which calls for reversal. o

The judgment and order should be affirmed, with costs.

Gildersleeve, J., concurs.