
    Gilbert E. Roe, Appellant, v. American Railway Express Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1920.)
    Damages — claim for supposed loss of a trunk — express companies.
    Where a trank sent by express was .found after the settlement of a claim for its supposed loss the owner is entitled to its possession from the express company without refunding the amount received on the settlement.
    Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, in favor of the defendant, dismissing the complaint after trial by the court without a jury.
    Arthur H. Bissell, for appellant.
    Stockton & Stockton (J. T. Phelan, of counsel), for respondent.
   Wagner, J.

The plaintiff shipped a trunk on January 30, 1918, from Pelham Manor, N. Y., to Vineentown, N. J., via the Adams Express Company. The trunk was not delivered to the consignee. Both parties concluded it was lost. Thereafter the defendant paid the plaintiff the sum of fifty dollars in ‘ ‘ full release and satisfaction of any and all claims account of shipping ” of the trunk in question. Shortly after this settlement was made the trunk was found. The plaintiff demanded its return which defendant (in possession of the trunk) refused unless plaintiff paid back the fifty dollars he received in settlement of his claim when it was supposed to recover the trunk., The court below dismissed the complaint. This was error. The plaintiff being still the owner of the trunk is entitled to its possession. The payment of the fifty dollars by defendant in settlement of plaintiff’s claim for the loss of his trunk did not pass title thereof to defendant. Defendant did not by that payment purchase the trunk. It merely settled plaintiff’s claim to damages because of its loss.

Judgment reversed, with $30 costs to appellant, and judgment directed for plaintiff for the recovery of possession of the chattel, or in case delivery cannot be made, for the sum of $175 and costs.

Bijur and Delehanty, JJ., concur.

Judgment reversed, with thirty dollars costs to appellant,  