
    Edward Leech, Respondent, v. The New York, New Haven and Hartford Railroad Co., Appellant.
    Appeal by the defendant from a judgment rendered in favor of the plaintiff, in the Municipal Court of the city of New York, first district, borough of Manhattan.
    Henry W. Taft (Hugh A. Bayne, of counsel), for appellant.
    Thomas P. Hall, for respondent.
   Freedman, P. J.

Plaintiff brought this action to recover the value of six boxes of fish sent to him from Boston, and sold by defendant under the following circumstances:

Ten boxes of fish, packed in ice, were shipped at Boston on April 7, 1902, -over defendant’s road and consigned to plaintiff in this city. The shipment reached here on the morning of April 8, 1902, and the defendant immediately notified the plaintiff of its arrival, and notified him that “it is imperatively necessary that all freight be taken away the same day of its arrival.” This notice plaintiff received between nine and ten a. m. of April eighth. The goods not having been removed on April ninth, and it being observed that the ice in the boxes was loose, that the fish were giving out an odor indicating that they were becoming stale and that a slimy fluid was flowing from the boxes, the defendant sent a second notice to the plaintiff to call and get the fish. No attention was paid to this notice, and on the morning of the tenth of April, the state of the fish having been reported to the proper officer of the defendant, he, about three thirty p. m. of that day, directed that the fish be sent to S. B. Miller & Co., fish dealers, at Fulton Market, with orders to sell the same at the best price obtainable. One load, containing six boxes of fish, were thereupon taken by a truckman, not in the employ of the defendant, and conveyed to said Miller & Co.’s place of busisness. About one hour after the six boxes had been taken the plaintiff, for the first time, appeared, by a Mr. Smith, his representative, and demanded his goods. Smith was told that the six boxes had been sent to Miller & Oo. to be sold, and that the sale had not yet taken place, and he could have the six boxes by paying three dollars, the truckman’s charge, for taking them from defendant’s pier to Miller & Co.’s market. Smith offered to pay the freight on the ten boxes from Boston, but refused to pay the - three dollars’ cartage charges. Thereupon, Wolf, defendant’s agent, telephoned to Miller & Co. to sell. The four remaining boxes Smith took away, paying the freight thereon. As the market for the sale of fish was over before Miller & Co. were finally ordered to sell, they held the fish until the following morning at which time they sold them in open market for twenty-nine dollars and sixty-five cents. The cartage was three dollars, and cost for selling, three dollars and seventy-one cents, and the freight charges on the six boxes, nine dollars, making the total charges, fifteen dollars and seventy-one cents, leaving the net proceeds, thirteen dollars and ninety-four cents, for which the defendant acknowledges liability. Plaintiff had a judgment for sixty-four dollars and fifty cents, the amount testified to by the plaintiff as the reasonable value of the six boxes sued for.

Appellant claims that the sale so made by its direction was justifiable, for the reason that having an interest in the property sold by virtue of a lien as carrier, and that, if the freight had perished its lien would have become valueless, that, therefore, under the circumstances it was warranted in protecting itself from loss. It also claims it is protected by statute. Chapter 582, Laws 1899, amending section 46 of the Railroad Law, provides as follows: “ Unclaimed live stock and perishable freight or baggage may be sold by any such railroad or other transportation company without notice, as soon as it can he, upon the best terms that can be obtained. All moneys arising from the sale of such unclaimed live stock, perishable freight or baggage, after deducting therefrom all charges and expenses for transportation, storage, keeping, commissions for selling the property, and any amount previously paid for its loss or non-delivery, shall be deposited by the corporation making such sale with a report thereof, and proof that the property was live stock or perishable freight, with the comptroller for the benefit of the general fund of the state, and shall be held by him in trust for reclaimation by the person or persons entitled to receive the same.”

Without discussing the first point raised by the appellant it is sufficient to say that we think that the defendant has fully complied with the provisions of the foregoing act. At the'time it removed the six boxes of fish it had been in possession of the railroad for four days, viz.: April seventh, the day they were shipped, to April tenth, inclusive; and fifty-four hours of this time was after their arrival at their destination .and before defendant took any action regarding their disposal. The plaintiff had been notified of their arrival and had ample opportunity to remove the fish, but had given no indication of an intention to accept them. Under these circumstances the defendant had a right, on April tenth, to consider them as unclaimed. “ Unclaimed ” in the statute can mean nothing but unclaimed within a reasonable time after notice ” (Hedges v. Hudson R. R. Co., 49 N. Y. 223), and what is a reasonable time must be determined by the circumstances attending each case. Plaintiff’s counsel conceded on the trial that never before had more than two days elapsed between the arrival and delivery of fish. The defendant, in estimating what was a reasonable time, had a right, to consider the fact that the goods were perishable. That fish, placed in boxes, packed in ice and shipped long distances in railroad cars are perishable freight is a fact of such common knowledge as to need no judicial utterance for its establishment. In the case at bar the evidence of the perishable nature of the consignment, on April ninth and tenth, was unmistakable. The time that had elapsed since shipment, the absence of ice, the odor emanating from the boxes, the leaking of the slimy fluid, all gave strong indications of decay, and was notice to the defendant that prompt action was necessary, and justified it in taking the course it followed. The plaintiff knew that a sale of the six boxes had been directed and knew where the goods were to be sold. He could have protected himself from a loss of but three dollars cartage and the expenses of sale by attending such sale and purchasing the property, and at the same time have preserved his legal rights.

The defendant was bound to sell upon the best terms that can be obtained.” It sent the fish to the principal market of the city, to a large and well-known dealer, instructed him to sell at the best price he could, and they were sold in open market at the highest price possible. This was a compliance with the terms of the act. The material facts in the case being undisputed, the questions arising are those of law only.

The judgment must be modified by reducing the amount of the recovery in the court below to the sum of thirteen dollars and ninety-four cents and costs, and as modified affirmed, without ■costs to either party on this appeal.

Gildersleeve and Giegerich, JJ., concur.

Judgment modified by reducing amount of recovery in court below to thirteen dollars and ninety-four cents and costs, and as modified affirmed, without costs.  