
    Levenson Wrecking Company, Respondent, v. New York Central and Hudson River Railroad Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    December, 1915.)
    Carriers — action to recover value of certain lumber — notice of demur-rage chárges — refusal to deliver until charge paid.
    Where in an action to recover the value of certain lumber delivered to defendant for transportation it appears that on the day after the arrival of the lumber by barge plaintiff was given notice and told that if he did not take it away the next morning there would be a charge for demurrage, which, in the circumstances, appeared proper, defendant was right in refusing to deliver the lumber until the demurrage was paid.
    Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of the plaintiff and against the defendant.
    
      Alex. S. Lyman (Jacob Aronson, of counsel), for appellant.
    Feltenstein & Rosenstein (Moses Feltenstein, of counsel), for respondent.
   Philbin, J.

The action is brought to recover the value of certain lumber delivered to the defendant to transport to the plaintiff as consignee from White Plains, in this state, to the place of business of the plaintiff in Hoboken, N. J. The lumber was delivered to the defendant at White Plains and carried by it to Hoboken. The defendant refused to deliver the lumber until certain charges for demurrage were paid by plaintiff, which the latter declined to pay. The determination of the issues depends upon the point as to whether under the circumstances the defendant was justified in refusing so to make delivery. I do not think the proof supports the judgment for the plaintiff. The plaintiff refused to pay said demurrage because it had not been duly notified of the 'arrival of the shipment, and because in any event a higher rate of demurrage was demanded than would have been payable had the contract been properly performed by defendant. The plaintiff contended that the contract called' for an all rail transportation and that the defendant acted without authority in using a barge, for part of the way. Accordingly it should not have been asked to pay demurrage at the boat rate, which was ten dollars a day, instead of the car rate, which was one dollar a day.

The claim that the plaintiff was not- seasonably in- ' formed of the arrival of the goods was not sustained on the trial. It is uncontradicted that the lumber arrived at Hoboken on the 30th of June, 1915. Although the president of the plaintiff testified that up to the 10th of July, 1915, he had no knowledge of the arrival, yet he also testified that he saw the captain of the barge, which carried the lumber, in the plaintiff’s yard on or about the first of July, and knew that he had a shipment of freight for the plaintiff at the dock, and that the captain demanded ten dollars a day demur-rage which the witness declined to pay. The testimony of one of the defendant’s witnesses was to the effect that he saw the said president on the second day of July, and notified him that if he did not take the lumber away by seven o’clock next morning there would be démurrage on it and that said president stated that the lumber was in the hands of the Hoboken Land and Improvement Company and that he could do nothing until he heard from them. Although the president was recalled to testify, the above testimony was not contradicted.

There was nothing in the bill of lading that prevented the defendant from using a barge for the purpose of finally transporting the goods to the place of destination and in fact it is difficult to see how such a delivery could have been made, in ordinary course from White Plains to Hoboken without the use of water transportation. The charge for demurrage demanded was proper in the circumstances and the defendant was right in refusing to deliver the goods until it was paid.

Guy and Page, JJ., concur.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide event.  