
    Margaret Gassaway Bigelow, Appellant, v. William H. Woolverton, as President of the New York Transfer Company, an Unincorporated Association, Respondent.
    First Department,
    April 21, 1911.
    Common carrier—failure to deliver trunk containing property of husband and wife —[prior recovery by husband.
    A wife may recover against| a common carrier- which failed to, deliver a trunk belonging to her husband and containing clothing belonging to ■ both of them, although the husband has already recovered judgment for the value of his portion of the property.
    In any event, the defense of ^uchrecovery by the husband cannot be raised upon appeal unless pléaded and proven.
    Appeal by the plaintiff, Margaret Gassaway Bigelow, from an order of the Appellate Term of the Supreme Court, entered in the Office of the clerk, of the county of New York on- the 30th day of November,: 1909, reversing a judgment of the Municipal Court of the!, city of New York in favor of the plaintiff. jj
    
      Harley L. Stowell, for the appellant.
    
      Robert L. Redfield, for the respondent.
   Scott, J.:

This is an appeal from á determination of the Appellate Term reversing a judgment of. the Municipal Court in favor of plaintiff. ¡

The plaintiff, in company with her husband, was traveling from Atlantic City to the city of New York. ■ They had with them a single trunk belonging to the husband which contained the clothing of both. On the train an agent of the transfer company of which defendant is president was employed by plaintiff’s husband to convey the trunk to an hotel. The agent took the railroad company’s check, and gave a receipt, which was not produced in evidence. The trunk was never delivered. The complaint alleges that the association of which defendant is president is a common carrier, and this is not denied. The defense relied on in the answer is based upon an alleged special contract evidenced by the receipt, but no such contract was proven, and even if it had been, it would probably not have availed the defendant. The defense mainly relied upon, and what apparently influenced the determination appealed from, is one which was neither pleaded nor proven, to wit, that the husband had sued and recovered judgment for the value of his property contained in the trunk. But, if that fact had been both pleaded and proven, it would apparently have been no answer to plaintiff’s action for the value of her own separate property. (Talcott v. Wabash R. R. Co., 159 N. Y. 461.)

The determination appealed from must be reversed and the judgment of the Municipal Court affirmed, with costs and disbursements in this court and in the Appellate Term. '

Ingraham, P. J., McLaughlin, Miller and Dqwling, JJ., concurred.

Determination reversed and judgment affirmed, with costs and disbursements in this court and in the Appellate Term.  