
    Samuel Brookstone, Respondent, v. The Westcott Express Co., Appellant.
    (Supreme Court, Appellate Term,
    November, 1899.)
    1. Common carriers — Failure to deliver excused.
    Where an express carrier cannot, after due search, find the consignee oí a package of goods at the address designated thereon, and returns the package to its sending office, and thereafter retains it upon the consignor’s refusal to take it back, the carrier cannot be held liable for the value of the goods, no depreciation in value having been shown.
    2. Same — An action for failure to deliver cannot be converted into replevin.
    An action for damages for - a carrier’s failure to deliver goods cannot be treated by the court, in its judgment, as one in replevin to recover the goods themselves.
    Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court, first district, borough of Manhattan.
    Harrison. & Griffin, for appellant.
    William Stuart, for respondent.
   Freedman, P. J.

The complaint in this action alleges that, on or about the 20th of June, 1898, the plaintiff delivered to the defendant, at one of its agencies, a certain package for transportation to one W. C. Welsh, at Bath Beach, X. Y., paying the charges therefor, and then asks for damages for the value of the property on account of its nondelivery. The answer admits the delivery of the package, at one of the defendant’s agencies, and that it was received by one of the employees of the defendant, for Moore’s express, and alleges that afterwards it was, upon ascertaining that Moore’s express did not run to Bath Beach, delivered to Kelly’s express; that Kelly’s express transported the package to its place of destination and to the address marked upon the package; that the consignee could not be found, although search and inquiry was made; that subsequently, at the request of the plaintiff, the package was traced, and on August 13, 1898, returned and tendered to the plaintiff, who refused to receive the goods. Upon the trial it was admitted that the value of the goods was eighteen dollars, and that they were delivered to one of the defendant’s agencies as above stated. But two witnesses were sworn, and both were called by and on the part of the plaintiff. One was the plaintiff’s employee who sent the package to the defendant’s office and the other the consignee of the goods. It was not shown by either of these witnesses that the goods were lost. On the contrary, it was shown that the goods had been traced and returned to the office of the defendant, and that they were then there ready for delivery to the plaintiff. It was not shown that the goods were of any less value at the time of the trial than when delivered to the defendant for transportation, and it was shown that the only effort made by the plaintiff to obtain his goods was to request the •defendant to trace the goods, which was done, and the goods tendered to the plaintiff the last of August, 1898.

After a denial by the court of a motion made by the defendant to dismiss the complaint and a denial of an offer to show that the consignee did not reside at the address given upon the package, the court said: “Judgment for the plaintiff for the possession of the property, and I assess the damages at five dollars.” This was error. The record fails to show that the plaintiff suffered any damage whatever, and there was affirmative testimony to the effect that the goods contained in the package were worth the same sum at the time of the tender of them to the plaintiff as at the time of their, delivery to the defendant for carriage. Moreover the action should not have been changed from one of damages to one in replevin.

Judgment reversed, new trial ordered, with costs to the appellant to abide event.

MacLean and Levehteitt, JJ., concur.

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