Romano v. Irsch — 53 N.Y. St. Rep. 696

Majority

p. 696

Francesco Romano et al., Resp’ts, v. Francis Irsch, App’lt.

(City Court of New York, General Term,

Filed June 19, 1893.)

Headnote

1. Charterpaiity—Liability of consignee for freight.

Certain freight was carried.by plaintiffs’ barque consigned to-defendant., who sold the same and directed its delivery, and stated an account of the freight to the vessel’s agent and thereafter promised in.

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writing to pay the same as soon as the proper person appeared who could show he was the legal receiver of the freight for said vessel. Held, that plaintiffs, on showing that they were entitled to receive freight for said vessel, were entitled to recover.

2. Same—Evidence.

Defendant set up a counterclaim based on a breach of the charter-party. Held, that the admission of the charterparty in evidence was not prejudicial to him, as without it he would not be entitled to go to the jury on his counterclaim, and plaintiffs would have.been entitled to a direction in their favor.

Appeal by defendant from judgment entered against him on verdict of jury, and from order denying new trial.

Convers & Kirlin, for resp’ts; John Mulholland, for app’lt.

The plaintiffs’ alleged cause of action is that they are owners of the barque “ Giulio R.,” that the defendant is indebted to the plaintiffs on an account for work, labor and services of the plaintiffs and their servants, in carrying in their barque, “ Giulio R,” from the port of Rosario, Argentine Republic, South America, to the port of Philadelphia, Pennsylvania, a cargo of bones, which were consigned to the defendant, and by the plaintiffs’ servants delivered to him, and by liim accepted on or before February 23, 1889, in the sum of two hundred and ten dollars and forty-three cents ($210.43) and interest thereon from the said 23rd day of February, 1889, according to the account annexed hereto and marked exhibit “A,” and that no part of the said balance of two hundred and ten dollars and forty-three cents has been paid.

The exhibit “A” annexed to the complaint is an account stated. by the defendant to T. Romana, of the bark “ Giulio R,” and shows that defendant is indebted for $210.45, the balance due for the freight of the cargo of bones mentioned in the complaint. This account is marked exhibit “ B ” in the case, and is shown to have been made and sent by defendant to the agent of the owners of the vessel. Months thereafter defendant writes that he “ will pay over the amount,” and again one year after he stated the account lie writes “ as soon as the proper person appears who can show that he is the legal receiver of freight for “ Giulio R” it will be paid promptly." See exhibits “0” and “D,” which are proven to be in the handwriting of the defendant. The plaintiffs prove that they are the proper persons to receive this balance of freight admittedly owing by defendant Moreover, the defendant assumed full control of this cargo of bones and sold it to Baugh & Sons Co., and directed its delivery to them from the vessel. The defendant’s counterclaim is specifically based upon the charter party, which lie now claims should not have been marked in evidence by the plaintiffs, and it was his counsel who objected to this question:

“ Q. To whom was the cargo consigned ? ”

-Defendant’s counsel: “The contract in writing will be the best evidence.”

Plaintiff’s counsel: “I ask the defendant to produce the charter-

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party.” And he produced it and it was then put in evidence. Eliminate this cbarterparty from the case, and then defendant would not have been entitled to go to the jury on any part of his ■counterclaim, for his entire counterclaim is, by the sixth paragraph of the answer, made dependent upon an alleged breach of the •charterparty, and the plaintiffs then should have had a direction in their favor. Mpreover, it is questionable whether the defendant should have had his counterclaim submitted to the jury at-all; however, it was so submitted, and the jury very properly returned .a verdict for the plaintiffs for the full amount claimed.

Judgment and order affirmed, with costs.

Fitzsimons, J., concurs.