
    Frances Tolano, plaintiff and respondent, vs. The National Steam Navigation Company, defendants and appellants.
    1. It is doubtful whether, when the cause of action set out in the complaint is a conversion merely of a. trunk, “ containing plate and other valuable articles,” the value of such contents can be recovered, unless evidence of their value be admitted on the trial without objection, and the case be tried upon the assumption that the action is brought for their conversion also.
    2. The principle that even a common carrier is only rendered liable in an action for the actual conversion of goods entrusted to them, by proof of an actual appropriation of them to his own use, does not affect the mere form of the action, but its substance also. The abolition of forms of action by the Code does not affect it.
    3. To make a common carrier liable for non-delivery of property, entrusted to him, the action must be brought specifically upon his breach of a public duty, or bis undertaking to carry safely and deliver, and he cannot be made liable for such neglect in an action wherein the complaint charges merely a conversion of the property to his own use, wherewith his position as common carrier has nothing to do.
    4. It is error to treat an action brought for the conversion of chattels as one for dereliction of duty or breach of contract by the defendant as a common carrier, and, without any evidence of a conversion, submit to a jury merely the questions, whether certain articles were “ ordinary and necessary ” to a traveler and a sum of money was a reasonable amount for traveling expenses.
    5. Where the counsel for the plaintiff disclaims any taking charge by the defendants as common carriers of articles lost, and during her whole travel she kept them in her possession, under her charge no question of liability as common carriers can arise.
    6. Proof that a plaintiff was not allowed to put a trunk containing valuables, on board of one of two tug boats, that were employed by the defendants, under the dierction of quarantine commissioners of the port of New York, to tow a quarantined vessel and her occupants with their baggage to the shore, wherein she herself emiar/ced to be landed, but was directed by the agent of the defendants to put it on board of the other tow boat, which she did, and it was lost with its contents, is no absolute evidence of conversion thereof by the defendants, as matter of law.
    7. Ordinary diligence is used where articles are “ so sedulously kept by the vigilance of its custodian that it could not be stolen or abstracted.” Evidence of that fact alone is not evidence of a conversion, but should be submitted to the jury with any other evidence of it.
    (Before Robertson, Ch. X, Garvin and McCunn, JX)
    Heard October 21, 1867;
    decided January —, 1868
    . Appeal by the defendant from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial.
    The defendants are owners of the streamship Helvetia, employed in the carriage of passengers and freight between Liverpool and New York, and the plaintiff was a steerage passenger on said vessel, from the former to the latter place, in September and October, 1866. The complaint alleged that the defendants were a foreign corporation; that on or about the 29th day of October, in the year 1866, either within the waters of the bay adjacent to the county of New York, or at the city and county of New York, said defendants wrongfully converted to their own use, a certain trunk or package containing plate, jewelry, wearing apparel and gold coin, then and there being the property of the plaintiff" and of the value of $2892.50.
    It alleged a demand and refusal to return the property, and demanded judgment against the defendants, for the sum of $4000, besides costs.
    The defendants, by their amended answer, admitted that they were a foreign corporation, and that the plaintiff had demanded from them a trunk or package which she alleged was lost, and which she likewise alleged contained plate, jewelry, wearing apparel and gold coin; and the defendants denied generally and specifically each and every other allegation in the complaint contained. The defendants, for a further, separate, several and distinct defense, alleged that they were carriers of passengers between the ports of Liverpool, Queenstown and New York; that if the package or trunk in .the plaintiff’s complaint described ever came into the possession of the defendants, the plaintiff was a passenger on board a steamship of the defendants, and put such package, or trunk on board said steamship as luggage or baggage of the plaintiff; that the plaintiff was taken as such passenger under an express contract between her and the defendants at a low rate of fare, and in consideration that the defendants should not be responsible for loss, damage or detention of the plaintiff’s luggage or baggage.
    The defendants, for a third defense, alleged that they were common carriers of - passengers between Liverpool, Queenstown and' New York, that if the package or trunk described in the complaint ever came into their possession, the same was .brought on board one of their steamships as the baggage of the plaintiff, and was so received by them; that said trunk or package contained various articles of merchandize, and gold and. silver to a large amount, and not the ordinary wearing apparel of the plaintiff, and was not in any sense the baggage of the plaintiff; that the plaintiff fraudulently represented it to be such baggage, concealed the fact that said trunk or package contained merchandize, gold and silver as aforesaid, and paid no freight upon the same, and that the defendants exercised due care and diligence in the carrying of the said package or trunk.
    The defendants, for a fourth defense, alleged that they were common carriers by steamship of passengers between Liverpool, Queenstown and New York; that if the trunk or package of the plaintiff ever came into their possession, she came a passenger from Liverpool to the city of New York in the steamship Helvetia, belonging to them, and brought with her the trunk or package described in the complaint as her baggage; that they safely carried said plaintiff and her baggage to the port of New York; that during and throughout the voyage, and up to within less than ten days of the arrival of the Helvetia at the port of New York, the cholera existed on board the said steamship ; that in consequence of such disease, the said vessel, on her arrival at the port of New York, on or about the eighth day of October, 1866, was quarantined under and by virtue of an act of the legislature of the state of New York, passed April 29, 1863, and acts amendatory thereof; under and by virtue whereof the quarantine commissioners and health officer of the port of New York took absolute possession and control of such vessel and her passengers, and their baggage, and also of the trunk or package of the plaintiff, so as aforesaid brought to the port of New York by the defendants, and carried the same away.
    The action was tried before a justice of this court and a jury. The jury found a verdict in favor of the plaintiff, and assessed her damages at $2800.
    
      J. M. Van Gott, for the appellants.
    I. The defendants are sued, not for breach of their agreement or duty as common carriers, but for the voluntary and “injurious conversion” of the plaintiff’s property, and no such conversion was proved. At most the property was lost or stolen.
    1. Trover will lie where the goods have been lost to the owner by the act of the carrier, though there may have been no intentional wrong. But it will not lie for the mere omission of the carrier, as where the property has been stolen or lost through his negligence, and so cannot be delivered to the owner. The remedy in such cases is assumpsit, or a special action on the case. (Anon. 2 Salk. 655. Ross v. Johnson, 5 Burr. 2825. And see Dewell v. Moxon, 1 Taunt. 391; 2 Saund. 47, f.; McCombie v. Davies, 6 East, 538.)
    2. Mere non-feasance does not work a conversion of the property, and although the owner may have some other action, he cannot maintain trover. Here the trunk was lost, and the plaintiff can only recover, if at all, upon the counts which charge the defendants as carriers. (Hawkins v. Hoffman, 6 Hill, 586. Ross v. Johnson, 5 Burr. 2286, 2288.)
    II. It may be regarded as settled law, that a carrier is liable for a reasonable sum of money for traveling expenses, carried as baggage in a passenger’s trunk. But this liability is strictly limited to “ traveling expenses.” It does not include “ funds carried for the purpose of transportation, remittance, or investment in another locality.” (Merrill v. Grinnell, 30 N. Y. Rep. 594, 610. Taylor v. Monnot, 4 Duer, 116. Birdsall v. Russell, 29 N. Y. Rep. 220.)
    HI. The money in question was either carried for the purpose of transportation or remittance, or for investment in another locality. The plaintiff was changing her residence to New York, to engage in business there, and for that purpose carried her furniture,, wearing apparel, plate and capital. Her traveling expenses to New York were paid before she embarked at Liverpool, and all she brought with her was for use in her new abode and business after her arrival. The bulk of her property was distributed in seventeen packages, and the trunk in question contained newly purchased bonnets and dresses not worn before the voyage, (except for two hours to evade the revenue charges) nor on the voyage, a table cover and silver plate, (excluded by the court,) as well as the bulk of her money or capital with which to commence business in New York. The money was not made baggage, any more than the table cover and silver plate, merely by mingling it with ordinary baggage. It is a perversión of language and truth, and a fraudulent evasion of the law, to describe it as baggage. The natural presumption that this money was a mere fund transported to New York, was not negatived by any evidence, that any portion of it was being carried for traveling expenses.
    ■IV. If any part of the money was for use for traveling expenses, it was only so much as .was reasonable therefor.
    1. It is undisputed, (1,) that the traveling expenses to New York had been paid; (2,) that the trunk in question was delivered at quarantine, on the defendant’s tug, to be transported, and that the plaintiff was transported on another tug, free of additional charge. The transit was from the ship to the shore, where the journey ended, and the trunk was delivered to the carrier at the ship so to be carried gratuitously to the shore. There1 were no traveling expenses, or they were merely nominal.
    2. Upon this undisputed state of facts, it is a conclusion of law, that the money was not carried in the trunk from the ship to the shore for traveling expenses. $1330 was not a reasonable sum for traveling expenses from the ship to the shore or for a few days thereafter, with reference to the circumstances of the plaintiff. What is a reasonable sum for traveling expenses is a question of law, where, as here, the facts are entirely undisputed. (Roth v. Buffalo and State Line Railroad Company, 34 N. Y. Rep. 548, 553.) At least it must, in such a case, be for the court to say that money beyond some limit is not reasonable for traveling expenses; and $1330 is far beyond that limit.
    3. The limitation of the passenger-carriers’ liability for money carried as baggage, is reasonable and founded on sound policy, and ought -to be enforced. It can only be enforced by making the limit a question of law on undisputed facts, or by setting aside verdicts as palpably contrary to evidence, when rendered, as here, for a sum largely in excess of a reasonable limit.
    V. The whole claim is loaded with suspicion; and if the action is sustained to any extent, the rules of law should be applied rigorously to limit the amount of the recovery.
    1, The verdict is contrary to the evidence, and in violation of the charge restricting the liability for the money to a reasonable sum for traveling expenses.
    2. If jewelry and ornaments may be regarded as baggage to any extent, it can only be to the extent to which it is carried for actual use on the journey. Here, it was not carried to be worn in the steerage of an emigrant ship; and it was not for use on the journéy. It was, therefore, in fact, not carried as a traveller’s baggage for nse; but was being transferred by the plaintiff as a part of the bulk of her capital and effects, from one country to another. '
    
      S. Morrison, for the respondent.
    I. Under municipal authority the defendants discharged the plaintiff from their vessel, as passenger, at some place oiit of the city of New York, by reason of the epidemic which prevailed on board the ship, from which, as a passenger, the plaintiff was discharged by the defendants pursuant to" law. (2 R. S. p. 6, § 12, 5th ed.) The relation of carrier and passenger ceased on such discharge.
    
    H. The relation of carrier and passenger having ceased to exist from the time of the discharge, the defense qua carrier is not maintainable as regards the plaintiff’s claim.
    I. The "discharge of the passenger, as such, discharged the defendants’ relation to her as carriers, and the plaintiff could hot sue the defendants for her short-coming to the place of destination. (2 R. S. supra)
    
    2. The property of the plaintiff, as an incident to the relation, "was, simultaneously with her discharge, discharged as "baggage, for which the defendants, up to . the .time of their discharge as carriers had been liable.
    3: If this were not so, at what particular juncture did the defendants’ relation as carriers cease ? Can it be maintained this question turns upon the incidents of the convalescence" of a fever or cholera patient, his ability or disposition to be landed, the municipal sanction to allow the landing and the like ?
    " HI. The plaintiff’s property having been, by compulsion, taken from her by the defendants, they are liable. (Reynolds v. Schuler, 5 Cowen, 323. Connah v. Hale, 23 Wend. 462. Wintringham v. Lafoy, 7 Cowen, 735. Bristol v. Burt, 7 John. 254. Murray v. Burling, 10 id. 172.)
    IV. The defendants at no time as cairiers, or in any other relation, by contract with or privity or consent of the plaintiff, had charge of the property.
    
      1. During the passage on the Helvetia the plaintiff kept the same under her control, in her immediate possession, and in her actual custody; whilst on the Illinois she did the same. It was only taken on the tug boat against her will.
    2. It was not baggage committed to the care of the carriers, any more than-the watch, wallet or jewels of the passenger in his own custody.
    3. Had this property been lost or purloined from the plaintiff, and the defendants sued therefor, the answer that the defendants had it not, would have been a perfect defense under the proof.. °
    V. The exception to the ruling on the motion to dismiss the. complaint, at the close of the plaintiff’s evidence, and again at the close of the evidence of the defendants, upon the ground that trover cannot be maintained against a carrier because of the mere omission to deliver, is not well taken. .
    1. Because, as contended in points I, H, and HI, the action is not predicated upon the relation of carrier.
    2. The action in that form is not maintainable where a mere omission to deliver is not the only gravamen of the case. The authorities, which maintain the proposition, , that a mere omission to deliver, is not sufficient, involve the logical conclusion that in such case, the property having been lost or stolen, cannot be wrongfully converted by the defendants. Inability to restore the same on demand does not disprove wrongful conversion.
    3. In this case the property is proved to have been taken by the defendants against the will of the plaintiff; and the defendants, by affirmative evidence, show, that since the same was taken, it was under the charge of their custodians, so sedulously kept by their vigilance, that it could not be stolen or' abstracted. Thus the defendants have proved too much to maintain the proposition that a nonsuit should follow. The property not having been stolen or abstracted, the action in form is maintainble. (Hawkins v. Hoffman, 6 Hill, 588.)
   Robertson, Ch. J.

The cause of action set out in the complaint in this case is a wrongful conversion by the defendants of, and a refusal by them to deliver to the plaintiff, on a demand by her, a trunk, (her property,) “ containing plate, and other valuable articles, and money.” Were it not that evidence seems to have been admitted, without objection, of the value of such contents, and the ease to have been tried upon the assumption that the action was brought for their conversion also, it might be doubtful whether they could be recovered for, under a complaint so worded.

. Under the allegation in the complaint of the “ conversion ” of the property in question by the defendants, to their own use, whether as bailees for hire, or only gratuitous custodians of it, the plaintiff could not recover without proof of an absolute appropriation of it by the defendants to their own use, or, what is equivalent, parting with it to others without the authority of the owners. Only in such cases would an action,, in the form of trover, have formerly lain, even against common carriers. (Devereux v. Barclay, 2 Barn, & Ald. 702. Stephenson v. Hart, 4 Bing. 476. Youl v. Harbottle, Peake’s Cas. 49. Sublock v. Inglis, 1 Stark. 154.)

Where a common carrier was sought to be made liable, on non-delivery, a special action on the case for a breach of the public duty of carrying safely, or of assumpsit for a breach of the undertaking so to carry, would have been the only forms of remedy for a mere negligent loss. (Ross v. Johnson, 5 Burr. 2825. Anon. 2 Salk. 665.) This con-' stitutes a substantial difference in the cause of action, which the plaintiff was bound to observe in the statement of facts constituting the complaint, (Code of Procedure, § 142, subd. 2,) if she seek to recover for mere non-delivery or loss. This, in fact, the plaintiff conceded, claiming on the argument, however, that such appropriation, in fact, by the defendants, was established by the evidence.

. No question is made as to the termination by the compulsory transfer of the plaintiff to the receiving or hospital ship, Illinois, under the health laws of this state, of the original contract oif the defendants, as common carriers, to transport the plaintiff, and her baggage to the port of New York, and safely land it and her there; the plaintiff’s counsel not only conceding that it was so terminated, but even claiming that the defendants never had, even during the voyage, the missing property under their charge as carriers, and that they took it from her by compulsion, and against her will, into their custody, and kept it in such a manner that it could not have been lost or stolen, and must, therefore, have been appropriated by them to their own use. A mere compulsory taking of the property from the plaintiff’s possession by the defendants, and a refusal to restore it, would have been sufficient, without any proof of its subsequent fate, or of a demand, to enable her to recover in this action; proof of want of ordinary care in keeping it, or of actual subsequent appropriation of it to the use of the defendants, would only be necessary in case they had been voluntary bailees without hire.

On the trial the counsel for the defendants requested the court to charge the jury, that they “ must find a verdict for the defendants, if they found that they did not convert the property in question to their own use,” which the learned judge presiding on the trial refused to do, except as he had already charged, to which refusal such counsel excepted.

The learned judge had charged that" “the principles applicable to all cases of property lost by carriers, are equally applicable to this case, and must be applied, with the same rigor, as in all others. There is nothing that calls for any relaxation of the rules- in this- case.” And he added: “In my view of the case, under the evidence, these defendants are liable for the loss of this trunk. As to the liability for the contents, that is another thing. There is no question at all but that there was such a trunk, and it may be fairly assumed that the trunk was lost.” He then submitted to the jury substantially three questions of fact. (1.) What were the contents of such trunk. (2.) Whether the articles of wearing apparel and jewelry, claimed by the plaintiff to have been in said trunk when lost, were her ordinary and necessary wearing apparel for the voyage; and (3.) Whether the sum of $1200, claimed by her to have been in such trunk when lost, was a reasonable amount of money “ for traveling expenses, and for staying a few days at a hotel, until she could get into business;” and instructed them that, if they decided the last two questions in favor of the defendants, they should “ give her a verdict ” for such articles as were in the trunk, except certain ones which he had directed them to disregard, as not being necessary either as wearing apparel or for traveling expenses.

The court thus not only evidently put the liability of the defendants upon the ground of their being common carriers, liable, at all events, for the loss of the property in question upon its non-delivery, and not exempt from liability by proof of any ordinary legally recognized excuse for not delivering at the end of the route, but also refused to charge that the defendants were not liable unless for a conversion of the property to their own use. This is directly contrary to the principle settled by the authorities already referred to, (vide supra,) and was sufficient error to authorize the granting of a new trial. The plaintiff’s counsel seems, however, to have conceded this, and devoted himself to the task of proving that there was sufficient evidence in the case to establish such conversion, either by the compulsory taking of such property out of the plaintiff’s possession; or, if such taking were peaceable and lawful, by the impossibility or violent improbability of its disappearance in any other way, under all the circumstances of the case. And as it may be necessary, in case of another trial of this case, to determine what rules of law are applicable under that view, it may be yell to look at the evideuce. It was not only conceded on the argument, but claimed by the plaintiff’s counsel, “ that the defendants at no time, as carriers or in any other way, by contract with, or privity or consent of the plaintiff) had charge of the property.” This maybe assumed to be true up to the time of her leaving the Illinois to go on shore, for both the plaintiff and another witness (Mrs. Young) testify to that effect. The former states that she had had charge of that box during the passage, in her “berth,” because there were valuable things in it, and “ she never allowed it to go out of ‘her’ possession on board the Helvetia or the Illinois until it was put on the,tug boatand, again, that this was the only package in her charge ; she had no other but that in her charge. She further testified that she had it three weeks in her room in the Illinois. The other witness corroborated her statement as to having it in her charge in her berth, during the whole voyage, on board of the Helvetia. And the assumption of that care by the plaintiff would have prevented any recovery by her for any loss of such box during the voyage. (Cohen v. Frost, 2 Duer, 335.)

The first question, therefore, on the evidence, is as to the compulsory taking of such property by the defendants out of the possession of the plaintiff. In applying the evidence to that point, it is to be assumed that all previous relations between the parties had ceased, and that they stood precisely as if, for the first, time, the plaintiff, being a lodger on board of the Hlinois, had parted.with the possession of her trunk at the moment .of her leaving that vessel to go on shore, by letting it go on board of a separate tug boat from that in which she went to the shore. The testimony of the plaintiff was, that when the tug boat came alongside, and she was directed to go on board of it to go ashore, her son and herself took such trunk’ and its contents “ to the gangway to bring with them.” Mr. Finlay, (the alleged agent of the company,) said, they could not bring their baggage on that boat— it must go on the other tug boat. “They then carried it across the side to the other tug boat, and it was put on board.” They then went ashore on the first boat. This was all done under Mr. Finlay’s direction. On cross-examination, she stated that he “ said he would not allow any package to be on board where the passengers were.” This was corroborated by Mrs. Young and the son of the plaintiff (James Tolano.) The latter also testifies that Mr. Finlay, who was acting then as agent of the defendants, receiving and delivering letters, bringing down provisions and the like, came down, with two tugs to bring -the passengers and baggage on shore. The fact of Finlay’s acting as such agent was also testified to by another witness, (Gamble,) who further states that Finlay brought all the baggage on one tug, and carried the passengers to land on another. After towing the Illinois to her winter quarters by such boats, he removed the passengers on one boat and the baggage on another. He ordered that no baggage or package should to be taken by the passengers. This was when all were leaving.the Illinois to and. He would not permit any of the passengers to have or keep their baggage under their own charge when landing from the Helvetia. “He prevented them from taking their baggage with them.” It was admitted on the trial “thatthe defendants employed the tug boats to land the passengers and their baggage.” This evidence was not essentially varied by any other testimony, except that Mr. Finlay testified, that he told the passengers that they had to go on the passenger tug boat, and the baggage must- go by the other tug, but that any small parcels or valuables he would allow them to take with them; and in this he was corroborated by two other witnesses (Rourke and Peterson.) This testimony is apparently not contradicted by any other. The box itself was three feet long and one foot six inches broad. Mr. Finlay also testified that he had the superintendence of the landing of the passengers and baggage from the Helvetia. He took down two - boats — one for the passengers and the other, baggage. He had orders from the quarantine commissioners to have the Illinois brought to Gravesend bay, and there disembark the passengers and the baggage. He wanted to get the passengers to Castle Garden before it was closed, that they might be taken care of during the night. He superintended the transfer of the passengérs; another person, (Peterson,) had charge of the men that moved the baggage, which he landed on the wharf at Castle Garden, and put in an inclosed space.

I am unable to discover in the evidence any forcible dispossession of the plaintiff of such trunk, or any compulsion of her to place it on board of the baggage boat. She was undoubtedly prevented from taking it with her in the passenger boat, but that alone would not have compelled her to put it into the custody of the agents of the defendants, on board of the other boat. She might, for aught that appears to the contrary, have left it on board of the Illinois, and taken another opportunity to land with it in her possession ; unless the removal of herself and her baggage as well as the other passengers, was by authority of the quarantine commissioners, and therefore peremptory; under which indeed, rather than that of the defendants, Finlay seems to have been acting, as the agent of such public officers. His separation of the passengers from the baggage may-have been discreet to prevent any delay in waiting for the latter, which might interfere with such passengers being landed and'housed in Castle Garden that night. Passengers were notified they might take small packages of valuables, and it does not appear that the plaintiff claimed the trunk to be such. It appears to have, been a box of dubious size for holding valuables, (unless they were very numerous;) at all events the plaintiff, without the least remonstrance, although it contained a great deal of money and valuables, as she stated, and she had had it in her berth under her eye the whole voyage, carried it herself to the side of the other tug boat and saw it put on board. No part of this evidence seems to me to be such an assumption of exclusive dominion or control over such box by Finlay, as agent of the defendants, as to make the act of receiving it on board of the baggage boat a conversion by them. If it contained any evidence of it, it should have been submitted to the jury.

But, if such delivery was a voluntary bailment without hire, the question of want of ordinary diligence in taking care of the box should have been submitted to the jury, if there was any evidence of it. It seems by the testimony that, after being placed on board of the tug boat, (the Meteher,) all the baggage was landed as before mentioned, and left in charge of a watchman, (Hartman,) all night in an inclosure. All of it brought from the Illinois was there next morning, and was again - in charge of a watchman, (Peterson,) all that day, until he was relieved by the previous watchman, (Hartman,) who remained until the second morning on guard, when the landing agent, (Hall,) came, who commenced delivering it, after an examination by custom house officers, the plaintiff being present. Buch watchman denied the removal of any of the baggage until that time, and the plaintiff’s counsel admitted on the argument that such trunk was “so sedulously kept by the vigilance of its custodian ■ that it could not be stolen or abstracted;” nor do I find any evidence of the want of the ordinary precautions taken by prudent men to take care of their property. If there was, it should have been submitted to the jury, unless downright negligence was proved.

I am not prepared to admit that, upon strong proof of great care of a bailee without hire, in guarding chattels delivered to him, so as almost to exclude the possibility of their disappearance without his connivance, a conversion to his use is to be presumed, or that it is by itself, alone, sufficient to go to a jury upon this point. At most it can only be a circumstance to be submitted to the jury, .either alone or with others. 1

Upon either view of the case, therefore, either that of the court considering the defendants as common carriers, and liable as such without an appropriation of the property to their use, or that of the plaintiff’s counsel considering the defendants either as tort feasors, in taking or afterwards appropriating the goods, or guilty of negligence in taking care of them, there should be a new trial.

The judgment and order denying a. new trial must, therefore, be reversed, and such new trial had, with costs to abide the event.

McCunn, J. (dissenting.)

I regret that I must dissent from some of the views set forth in the leading opinion of the court.

The action is to recover $2892.50, being the value of a small trunk and contents, which the plaintiff alleges the defendants wrongfully took and converted to their own use. The facts are substantially as follows': The plaintiff was a passenger in one of the defendants’ steamships, (the Helvetia,) from'Liverpool to this port. On the arrival of the •vessel here, it was found necessary to quarantine her, under our laws; consequently, the passengers were sent, with all their- luggage, to the steamship Illinois, then moored in the lower bay. At the expiration of some eighteen or twenty days; and after quarantine was perfected, the defendants sent their steam tugs and brought the passengers and their baggage to the city. The plaintiff had the- small trunk (the one out of which this controversy arose) in her pos-" session, and was guarding it herself, as she had done all the voyage. The defendants took the trunk from her against her will, and placed her in one tug, and her property, together with this trunk, on another, to send them to this city. This was the last she saw of her trunk, or the articles it contained. She demanded her property; the demand was refused. Hence this action. / The complaint does not declare against the defendants as carriers, but simply against them for unlawfully taking and converting the property; and I hold that, under the circumstances, this is the proper form of pleading.

The defendants answer that they are carriers for hire, but urge, against a recovery, that an action of trover will not lie for the mere omission of the carrier to deliver, as Where the property has been stolen or lost through negligence, and so cannot be delivered to the owner. The remedy, their counsel says, in such cases, is assumpsit, or a special action on the case, and not trover, as he alleges this action is. The 69th section of the Code has abolished" all distinctions between the mere forms of actions, and every action is now a special action on the case, (Goulet v. Asseler, 22 N. Y. Rep. 228.) The Code (§ 142,) requires only a plain and concise statement of the facts, constituting a cause of action, without repetition, and a demand for the requisite relief. Eow, this complaint states concisely and clearly enough that her property was taken from her possession without her-consent, that, although she demanded a return of the same, it has.not been returned, and asks that the court award her its value. You may designate the action as an action in trover, or in assumpsit, or one on the case, or whatever else you may please to call it. I hold that nothing more is requisite in the complaint, and although some may cling to old and obsolete forms of pleading, yet to the plain mind (I mean those who seek speedy and substantial justice,) and according to the law of the day, this is all that is required.

The learned counsel for the defense, in his effort to establish that the form of action in this case should have been assumpsit and not trover, cites a synopsis of the case of Ross v. Johnson, (5 Abbott’s Digest, 243,) forgetting this fact, that the authority is a century old, and that we have changed much in the forms of law pleading since then, as well as in all things else. But even in the case of Ross v. Johnson, which I find reported at length in the second volume of Lord Mansfield’s decisions by Evans, that most learned judge declares his disapprobation of nonsuits founded upon objections that have no relation to the merits of the action.

Moreover, Lord Mansfield said, in that very litigation, that the form of the suit should have been an action on the case, which form of action the suit at bar is. I hold that the authority in Ross v. Johnson is an authority for the plaintiff. The action herein is not brought especially against the defendants, as carriers. The complaint is simply for the taking and conversion of the plaintiff’s property, facts which, without reference to form, in themselves constitute a substantial cause of action; and I hold that the court, under such a complaint, taking it in connection with the. answer and the proofs in the case, would be justified, without alleging they were carriers, in holding them responsible.

Let us examine, briefly, what one of the best elementary writers says as to the form of pleading adopted in the complaint. Hilliard, (on remedies for torts,) writing in 1867, says: “ In trover against carriers the declaration need not set forth the duty of the defendants as carriers, if it sets forth his negligence and loss.” This rule was held in the case of Wright v. McKee, (37 Verm. R. 161,) and was also applied in the case of Crouch v. The London, &c. Railway Co. (14 Eng. Law and Eq. 498.) These authorities are gleaned from the reports of states where a much stricter line of pleading is applied than in our state since our Code took effect; and I certainly can find no authority wherein this liberal rule is condemned.

The only exception that can be taken to the proceedings had before the judge below, is, that in his charge he discussed, at some length, the law of carriers. Now, while such a discussion could perhaps have been dispensed with, has the course pursued by that learned judge in this respect, injured the defendants’ case? It certainly has not, and the best evidence of his not injuring the defendants’ position before the jury in his charge, is the fact that not a single exception to that charge was taken. Indeed the answer, and the whole theory of the defense was, that the defendants were carriers, and were not answerable, as such, for this special property, and it was only at the request of the defendants’ counsel that the court applied the law of carriers at all; so that it would he unjust to have this court apply that rule to the plaintiff in the argument here, when it is clearly seen that the plaintiff’s counsel protested against its application, throughout, at the trial below. Nor can the defendants request the court, at the trial of the issues of fact, to apply a rule of law in their favor against the will of the plaintiff, and then in the appellate court, if that rule is improperly applied, take ■ advantage of its improper application here. But this the defendants’ counsel does not seek. He intimates that the complaint is broad enough to hold the defendants as carriers, and in his answer he relies upon his clients’ rights as such carriers; and on the trial at circuit he requested, that the rule of law relating to carriers should be strictly applied by the court, and argued that the defendants should not be held liable for money or valuables which they did not, in their agreement with the plaintiff, as carriers, undertake to protect or forward. And the learned judge did apply the rule as requested,'and that in the strictest sense of the word, for he charged the jury that the plaintiff could only recover for necessary wearing apparel, and that if she had more money in the trunk than enough for traveling expenses, she could not recover the money over. If the complaint had been specially drawn, so as to enable the plaintiff to recover against the defendants, as carriers, the case could not have been more fully developed on the trial below than it has been. The plaintiff simply declared for taking and converting property. The defendants answer: “ "We are carriers for hire between this port and Liverpool; we did agree to carry you and a certain quantity of baggage to New York, but you had property and money in that trunk, of which you concealed from us a knowledge, and for which, under the laws of this state, we, as carriers, are not responsible, and, therefore^ you cannot recover.” Now, as I have stated before, the learned judge allowed this theory of the defense to go to the jury, and charged the law of carriers correctly, and that in favor of the defendants; and he submitted the question of necessary wearing apparel, and the proper amount of money for traveling expenses, to the jury. It will be said, however, that, under the complaint, (the complaint being for taking and converting,) final judgment cannot be granted. There are two answers to this proposition. First, the complaint is broad enough to hold the defendants as carriers, because it was optional with the plaintiff to treat the defendants as common carriers, and sue in case for breach of duty, or to ignore their character as carriers, and to sue for conversion. He has chosen the latter, and the action lies. Second, if not broad enough, the 173d section of the Code allows the appellate court, of its own motion, when it serves the ends of substantial justice, to make the pleadings conform to the facts proved on the trial.

The Court of Appeals applied this rule in the case of Pratt v. Hudson River Railroad Co. (21 N. Y. Rep. 305;) and the general term of the Supreme Court allowed a similar amendment in the case of Clark v. Dales, (20 Barb. 42.) Not only was this sound rule adopted in the above cases, but it was strictly applied in all of the following cases: Coleman v. Playsted, (36 Barb. 26;) Bowdoin v. Coleman, (3 Abb. 431;) Harrower v. Heath, (19 Barb. 331;) Cady v. Allen, (22 Barb. 388;) Bate v. Graham, (1 Kern. 237.) This doctrine was also established in this court in the case of Foot v. Roberts, decided at general term. In that case Mr. Justice Monell, in a very clear opinion, establishes, beyond a doubt, that the court has a right, in all cases where it serves the ends of substantial justice, to make the pleadings conform to the proofs.

It was “ in furtherance of justice,” as the statute declares, that such a section was added to the Code. I mean the section enabling the appellate court to make such amendments ; and surely a case never arose, and never can arise, wherein the statute can be applied and the ends of justice better subserved, than in this case. Let me ask, “ What is the amendment, if any, required here ?” Why, it simply requires the words “as carriers,” to he added, after the word “ defendants,” on line three of folio four of the complaint. It is conceded that in whatever light we may view this case, all the facts were fully developed on the trial, so as to enable the court to say whether the defendants shall be held liable as carriers, or for taking and converting, and there end the litigation. The learned judge below allowed the defendants and the plaintiff to place all the facts in the case in the fullest light before the jury, and allowed the jury to pass upon those facts; and if there were a thousand trials had hereafter, matters touching the property in controversy could not be made plainer. If this be so, why should the parties be subjected to a new trial, perhaps to a long and exceedingly expensive litigation, when this court sitting here in bank, can apply a remedy ?

Section 173 of the Code, relating to such amendments, was designed, among other things, to shorten litigation, to put an end to suits; and the courts in all cases, where the rule can be applied, should apply it strictly. I think, however, that the views set forth in the first branch of this opinion, are the correct views, and' that the complaint as it stands, is broad enough, and justifies the verdict of the jury. It is of little consequence whether the defendants took the property as carriers or as individuals: it is enough to sustain the action, that they took the property.

The object of plain pleading is to prevent, among other things, several actions from being brought for the same cause; and when the cause of action is so plainly stated that the facts can be developed at the trial and passed upon in such a form as to end the litigation, and prevent new suits for the same cause, this is all that is required, and no one will contend for a moment, after having examined the pleadings in this case and after so full a developement of the facts and circumstances on the trial below, that another action of any kind, especially an action against the defendants as carriers could be maintained. I have had no opportunity of consulting with my associate justices, who heard the case (the papers having been submitted to me.) Perhaps a discussion of the law and facts by them in my presence, or a knowledge of their views, might have induced me to concur with them about the application of the .rules of law, but in the absence of such knowledge, and entertaining the views of the law applicable to such cases I now entertain, I am for affirming the judgment, with costs.  