
    The Hill Steamboat Line, Plaintiff-Respondent-Appellant, v. Panama Railroad Company, Defendant-Appellant, The New York Central Railroad Company, Defendant-Respondent.
    
    (Supreme Court, Appellate Term, First Department,
    October, 1916.)
    Carriers — of goods — duty of, to deliver goods to proper person — negligence — fraud—pleading — evidence — Interstate Commerce Act.
    It is the duty of a common carrier to deliver goods to the proper person and it fails to do so at its peril whether a delivery is made because of an innocent mistake on its part or by reason of the fraud of some third party.
    In an action brought by an initial carrier under section 30 of the Interstate Commerce Act to recover the amount paid by plaintiff in satisfaction of a judgment recovered against it by a shipper for goods lost in transit, any local custom between the two defendant railroad companies, under which the bearer of a receipted freight bill issued upon the surrender of the arrival notice would be entitled to receive the goods, is of no force between plaintiff and defendants.
    
      Where the complaint in such action alleges that the loss was caused by the negligence of both defendants as well as by their failure to perform the contract of carriage, and it appears on the trial that one of defendants delivered the goods to one not entitled to receive them, it is liable to plaintiff irrespective of any custom that might give it a claim against the other defendant, and it is error to dismiss the complaint as against the first defendant and a judgment in its favor will be reversed.
    , It appearing that the negligence of the second defendant concurred in causing the other defendant to make a misdelivery resulting from the failure of the second defendant to retain possession of the paid freight bill, the presumption was that it was lost through its negligence and such presumption not having been in any way rebutted a judgment entered against the second defendant on a directed verdict will be affirmed.
    Cross-appeals from judgment of the City Court of the city of New York.
    Stetson, Jennings & Russell (J. Howland Auchincloss, of counsel), for appellant Hill Steamboat Line.
    Richard Reid Rogers (Jacob Marx, of counsel), for appellant Panama Railroad Company.
    Alexander S. Lyman (William Mann, of counsel), for respondent The New York Central Railroad Company.
    
      
       See 94 Misc. Rep. 118.—[Repr.
    
   Shearn, J.

This action between common carriers is brought under section 20 of the Interstate Commerce Act by the initial carrier to recover $581.81 paid by plaintiff in satisfaction of a judgment recovered against it by a shipper for loss of property in transit. The complaint was dismissed as against the New York Central railroad and judgment directed against the Panama Bailroad 'Company, which appeals. The plaintiff also appeals from so much of the judgment as dismissed the complaint against the Hew York CentralBailroad Company, claiming that it was entitled to judgment against both defendants. The complaint alleged that the. loss of the merchandise was caused by the negligence of both defendants as well as by their failure to perform the contract of carriage. The goods having arrived at the freight station of the Hew York Central Bailroad Company, that company sent to the Panama railroad a written notice of arrival, which was turned over by the Panama railroad to its truckman Haring, the only truckman then in its employ for the particular kind of work involved. This notice of arrival showed certain freight charges unpaid, and it was indorsed: “Deliver to Panama Line upon payment of charges, Walter B. Pollock, Mgr. F. F. Dept. B.” In accordance with a well-defined and customary course of dealing between the two defendant carriers, Haring stamped the arrival notice and gave it with the money for the freight bill to an employee who presented it to the Hew York Central’s cashier from whom he obtained a receipted bill. On the following day the delivery clerk in the employ of the Hew York Central, as was the custom between the carriers, delivered the goods to some one who exhibited the receipted freight bill issued the day before by the cashier’s office. The person who received these- goods signed a delivery receipt for the same, signing his name as “ Frank Wilson.’’ Haring testified that he had in his employ no person of that name. That was the last heard of the goods. The position of the Hew York Central is that, whether or not the person to whom it delivered the goods was in fact the authorized agent of the Panama Bailroad Company, the delivery was made in accordance with a valid, existing and long-continued custom between the two railroads, under which the bearer of the receipted freight bill issued upon the surrender of the arrival, notice was to be entitled to receive the goods; and that if in this particular case the person who presented the receipted freight bill had no authority to do so it remained for the Panama railroad to explain how such person obtained possession of the receipted freight bill; that, as there is an entire absence of such explanation, the Panama railroad must be held responsible for having brought about a situation whereby the New York Central innocently delivered the goods to some one who was not in fact authorized to receive them. This contention must rest upon the custom, for it is the well-recognized duty of a common i carrier to deliver the goods to the proper person, and \ it fails to do so at its peril, whether a delivery to the. I wrong person is made because of an innocent mistake 1 on the part of the carrier or by reason of the fraud of ' some third party. But, as between the plaintiff and the New York Central, any local custom between the latter company and the Panama railroad has no force. This is not a litigation between the two railroads, but 1 is an action by an initial carrier, which had no knowledge of any such custom of the intermediate carriers in making deliveries- to one another, and therefore could not be bound or in any way prejudiced by any such local custom. It appearing that the New York, ¡ Central delivered the goods to a-party who was not ; entitled to them, it is liable to the plaintiff irrespective j of any custom that might give it a claim against the/j Panama railroad. Therefore, error was committed in dismissing the complaint as against the New York Central Bailroad Company. The Panama Bailroad Company was properly held liable, for its negligence concurred in causing the New York Central to make a misdelivery. This result was brought about by the failure of the Panama railroad to retain possession of the paid freight bill. A presumption arises that it was lost through the Panama Bailroad Company’s negligence, just as in all cases where a bailee or carrier loses goods in its custody. This presumption was in no way rebutted, and the direction of a verdict against the Panama Bailroad Company was right.

The judgment against the Panama Bailroad Company is affirmed. The judgment in favor of the defendant New York Central Bailroad Company is reversed and a judgment for the sum of $741.05 is directed to be entered in favor of the plaintiff and against said defendant, with costs of appeal to the plaintiff.

Guy and Bijur, JJ., concur.

Judgment against Panama Bailroad Company affirmed. Judgment in favor of defendant New York Central Bailroad Company reversed.  