Wiles v. New York Central & Hudson River Railroad — 9 N.Y. Sup. Ct. 109

Majority

p. 109

ELIJAH WILES, Respondent, v. THE NEW YORK CENTRAL & HUDSON RIVER RAILROAD COMPANY, Appellant.

Headnote

Demurrage — Bill of lading — construction of word “ day ” — Waiver.

The plaintiff’s canal boat was loaded with a cargo consigned to the defendant at Schenectady, under a bill of lading which provided that the consignees were “ to have three full working or week days after boat arrived at their dock, in which to discharge cargo, and to pay master for any time (exclusive of Sundays) boat is detained for discharging after the expiration of the said three days, ten dollars per day, and at the same rate for portions of days.” Plaintiff arrived at Schenectady, near defendant’s place for unloading, August 1, 1873, took bill of lading to defendant’s office, and said he was ready to unload. He was told to

p. 110

lie still till they called him. On August eleventh, he was directed by defendant to move up to its dock and was unloaded. This action was brought for five days and eight hours’ demurrage. The defense interposed was that the boat did not arrive at defendant’s dock until the day it was unloaded; held, that by directing the plaintiff to lie still until called for, the defendant waived the necessity of an arrival at the dock. That no excuse could avail the defendant for a delay beyond three days, without compensation.^[1]

The court, in ordering a verdict, estimated eight hours as eight-tenths of a day; held, that the terms of the bill of lading did not authorize such a restricted meaning to the word “day;” the eight hours should have been estimated at eight twenty-fourths of a day. Verdict reduced.

Appeal from a judgment for the plaintiff, entered on a verdict ordered by the court.

S. W. Jackson, for the appellant.

D. S. Morrel, for the respondent.

Opinion by Boardman, J.

Miller, P. J., and Bockes, J., concurred.

Judgment as reduced affirmed, with costs.