
    Milton Bacharach, Respondent, v. Lehigh Valley Railroad Company, Appellant.
    Second Department,
    February 17, 1911.
    Carrier — negligence — failure to deliver perishable freight — facts justifying recovery.
    Action against a carrier to recover damages for its neglect to care for and deliver perishable, freight. Evidence examined, and held, that a judgment for the plaintifE should be affirmed.
    Appeal by the defendant, the Lehigh Valley Railroad Company, from a judgment of the Municipal Court of tiie city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 10th day of February, 1910.
    
      William C. Prime and Ernest C. Morse, for the appellant.
    
      Joseph J. Baker, for the respondent.
   Thomas, J.:

The plaintiff, consignor, has recovered from defendant damages for the latter’s neglect to carry duly and to care for perishable goods, meats, and to notify plaintiff of the refusal of the consignee, Gross, to receive them. The goods were delivered for shipment on August 5, 1908. Three or four days was a reasonable time for carriage to their destination at Perth Amboy, N. J. Defendant’s evidence given by Poulson, its agent at that place, shows that they arrived on August eighth. Plaintiff contends that they did not arrive at that date, or that if they did the agent at Perth Amboy, although frequent inquiry was made of him, did not advise the consignee that they had arrived even until ten days or two weeks after August eighth. Poulson testified that all conversations with the consignee were before August eighth, and that before that date Gross gave notice that he would not receive the goods. Gross testified that he did not refuse to take the goods until notified of the arrival, ten days or two weeks after August eighth. The evidence shows that the goods, kept boxed, would become mouldy within four or five days. The boxes were marked with the consignee’s and consignor’s names and addresses, and with the word “ Salami ” or “ Farmer.” The consignee was well known to the agent Poulson, and goods were often consigned to him. The shipping bill shows that defendant knew under what articles and classification Acme Salami” and “Farmer” came. Its letter of September twenty-eighth, notifying the consignor, states that the goods were “ 10 cases of smoked meat.” The shipping receipt also indicates that the carrier knew the nature of the goods. Ferris, the terminal agent at Brooklyn, was notified by plaintiff about August ninth or tenth that he was advised by letter from Gross that the shipment had not arrived, and the agent promised to start a tracer. But no communication was given plaintiff until September twenty-eighth. So the agent Poulson, on several occasions asked by Gross about the arrival, advised Gross of the arrival some days after their actual arrival, and Ferris was advised on August ninth that Gross had reported them not arrived, and a ti*acer was promised. Poulson knew that Gross had refused the goods, and that they were perishable. Poulson carries the transaction back into July, and would place the conversation with Gross and his refusal to accept at times between the middle of July and August eighth. But the finding favors the plaintiff, and the evidence amply supports it. Poulson testified that it was not the custom to notify consignees, but he made this unaccustomed notice to Gross, and if Gross’ testimony be accepted the notification was belated. Poulson appreciated that a notification was necessary, and he made it at such time that it entailed a refusal by the consignee to accept the goods, and this fact, joined to the promise to send a searcher, shows either that the goods had been unduly delayed or that the agent delayed notification, and the defendant, advised of the claimed delay in carriage and the refusal to accept, allowed the goods to perish in the warehouse, taking no proper care whatever of them, although it should have known that meats would not bear close boxing in August for a long period. The defendant contends that the carrier’s contract does not involve notification to the consignor of inability to deliver freight, and that it is not its duty so to do, unless reasonable care require it (Weed v. Barney, 45 n. Y. 344; Manhattan Shoe Co. v. C., B. & Q. R. R. Co., 9 App. Div. 172; Fisk v. Newton, 1 Den. 45 ; Adler v. Weir, 49 Misc. Rep. 134; Grossman v. Fargo, 6 Hun, 310), yet in this instance the consignee was misinformed as to the time of arrival, if they did arrive on August eighth (McKinney v. Jewett, 90 N. Y. 267); the company notified undertook to trace them, but remained content with storing known perishable articles in an unfit place without further attention or thought, and did not take such care of the goods as reasonable care required of a warehouseman. (Laporte v. Wells, Fargo & Co's Express, 23 App. Div. 267, 271; Scheu v. Benedict, 116 N. Y. 510 ; Barron v. Eldridge, 100 Mass. 455, 459; Buffalo Grain Co. v. Sowerby, 195 N. Y. 355.) It is urged that the neglect to give notice did not cause the loss, as the goods were perishable within four or five days after shipment, or August fifth, and the notification before the expiration of that time was not so practicable as to prevent the loss. But, if pending such notification and action the defendant had cared prudently for the meats, the deterioration would not have occurred, and even without such notice the duty of similar prudence rested upon it.

The judgment should be affirmed, with costs.

Jerks, P. J., Burr, Carr and Rich, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  