
    Herbert McMurray, Appellant, v. William C. Fargo, as Treasurer of the National Express Company, Respondent.
    Third Department,
    November 15, 1911.
    Common carrier — failure to deliver goods — pleading — complaint stating cause of action — action by agent.
    The complaint in an action against an. express company alleged that the plaintiff delivered to the defendant “ twenty-three horses in first-class condition, sound and valuable, at Buffalo, IT. Y., under an agreement made by plaintiff with defendant whereby defendant agreed to receive from plaintiff as owner, or agent of the owner,” for delivery to Port Edward, IT. Y., and that by reason of negligence in the forwarding of said animals three of them died and others were injured to the plaintiff’s damage in the sum of $1,000. ■
    
      Held, that the complaint stated a cause of action either in contract or in tort; /
    That, if in contract, the plaintiff had a right of action as the contract was to deliver to him;
    That, if in tort, it was immaterial whether the plaintiff was the owner or only the agent of the owner, as, being in possession of the horses, he had a right of action as bailee.
    Appeal by the plaintiff,. Herbert McMurray, from a judgment of. the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the lJthday of April, 1911, upon the dismissal of the amended complaint by direction of the court at the opening of the case at the Washington Trial Term.
    
      Bratt & Van Wormer [Fred A. Bratt of counsel], for the appellant.
    
      Jenkins, Kellogg & Barker [J. H. Barker of counsel], for the respondent.
   Smith, P. J.:

This complaint was dismissed as not stating a canse of action. After alleging the character of the defendant in paragraph 3, it is alleged: “That said plaintiff on or about the 21st day of February, 1910, delivered to the defendant, its agents or servants, twenty-three horses, in first-class condition, sound and valuable, at Buffalo, N. Y., under, an agreement made by plaintiff with defendant whereby defendant agreed to receive from plaintiff as owner, or agent of the owner, the said horses, and forward and deliver them to the plaintiff at Fort Edward, N. Y., in consideration of the sum of $160.00 to be paid by the plaintiff.” The complaint further alleges that by reason of negligence in the forwarding of the said horses three of them died, and others were injured to plaintiff’s damage $1,000.

It does not seem to me material whether the action be deemed one in contract or in tort. If in contract, the plaintiff clearly has a right of action, because the contract was to deliver to the plaintiff. If in tort, it is immaterial whether the plaintiff is owner or agent of the owner. He was in possession of the property. The defendant took the property from him. If not the. owner he was clearly the bailee, and as such has the right to maintain this action. In Cyclopedia of Law and Procedure (Vol. 5, p. 210) it is stated: “It has been held uniformly that the bailee has a right of action against a third party who by his negligence causes the loss of or any injury to the-bailed article.” Numerous cases are cited to this proposition, including several New York State cases. The complaint, therefore, stated a good cause of action, and it is unnecessary to consider the ruling of the trial judge denying his power to amend the complaint.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  