
    SALINGER against SIMMONS.
    
      Supreme Court, Third District; General Term,
    
    
      March, 1870.
    Cause oe Action.—Peooe oe Negligence.—Liability oe Carries.
    To sustain an action against carriers for the loss of goods, an acceptance of the goods must be shown, and their responsibility does not commence until the delivery is complete.
    If the goods are consigned to a person beyond their route, at a point to which thereüs no regular carrier, and their liability is once terminated by delivery to a warehouseman at the nearest point upon their route, ai¿ notice to the consignee, the fact that the consignee refuses to receive them, and returns them to the warehouse without notice to the keeper» where they are lost, does not render the carriers liable.
    , In such a case it is proper for the judge to direct a nonsuit.
    Exceptions.
    This action was brought by Max Salinger against Edward Simmons and others, the defendants, as common carriers and warehousemen, to n cover the value of a cask of gin lost by their negligence.
    The complaint alleged :
    1. That the defendants, as common carriers, September 22, 1864, contracted to carry a cask of gin for the plaintiff from the city of Hew York to Catskill; and that they so carelessly and negligently conducted themselves in that regard,'that the cask of gin was wholly lost to the plaintiff- and he demanded for judgment one hundred and seventy-five dollars.
    2. That the defendants, as common carriers, agreed to carry a cask of gin from Hew York to Catskill, consigned to Ira Sherman, East Windham, H. Y. ; that the gin arrived at its destination, and was stored by the defendants in their storehouse, a warehouse at Catskill Point, under the charge of J. T. Huntley, their agent, to be delivered to Ira Sherman on his order, and in case of his refusal to receive the same, to notify the plaintiff and to keep the same stored for him ; that Ira Sherman refused to receive the liquor; that the defendants did not notify the plaintiff thereof; that it was stored in their warehouse and was lost. The defendants interposed several answers to the complaint.
    The case came on for trial before Justice Peckham and a jury, at the Gfreene County Circuit, in Hovember, 1868.
    The plaintiff proved, that on the 22nd day of September, -1864, at Hew York, he shipped a barrel of gin on the defendants’ boat, to be conveyed to Catskill, and which was consigned to Ira Sherman, at East Wind-ham, which is a place distant from Catskill twenty miles.
    The goods arrived at Catskill, and were put in .the storehouse of the agent of the defendants, John T. Huntley, at Catskill, and of five or six other steamboat proprietors, who also kept a hotel under the same roof with the storehouse.
    Huntley put this cask in the storehouse for the consignee, and subject to his call or order. That was the. custom.
    A few days after, one Newman a teamster whose business it was to carry goods, came to the storehouse, and the cask of gin, without any order of the consignee, was put on his wagon by Huntley, and he carried it to Sherman, the consignee. Sherman was away from home, and the liquor was deposited on the ground in front of Sherman’s house.
    A few days after, Newman returned to Catskill, and Sherman stopped him, refused to take the gin, repudiated the purchase, claimed he had not ordered it, and directed Newman to take the goods back to the place where he got them from. The cask of gin was again loaded up, and it was carried to Catskill, received at, and deposited in, the storehouse in Huntley’s possession, where Newman swears he saw it two weeks after-wards.
    There was also evidence that Huntley was irresponsponsible.
    Upon this proof, the plaintiff cla'med that the defendants were guilty of negligence, either as common carriers or warehousemen.
    1. In delivering this gin for storage to Huntley, an irresponsible man, by reason whereof the plaintiff lost his property. t
    
      2. In losing the property, and not accounting for its loss, after it was put in the storehouse, on the theory that Huntley was their agent.
    The court nonsuited the plaintiff. Exception was duly taken, and the plaintiff insisted that on the ques- • tions presented the case should go to the jury.
    These positions were overruled, and the court decided there was no neglect by defendants, and ordered a nonsuit. The plaintiff excepted. The court made an order that the case and exceptions be heard in the first instance at general term.
    
      James B. Olney, for plaintiff.
    
      C. D. & T. C. Ingersoll, for defendant.
   By the Court.—Miller, J.

The evidence in this case establishes that the property in question was safely transported upon the defendants’ steamboat to Catskill Point, which was the termination of the defendants’ route as common carriers, and was there delivered to one Huntley, who kept a public house and a storehouse and warehouse at that place, and who acted as the agent of the defendants and of other steamboats in receiving and delivering freight. The defendants had no interest in the storehouse or warehouse; and the usual custom was to put all goods there which were landed at the Point, for the consignees, and subject to their call or order.

There was no regular line of transportation between Catskill and East Windham, where the goods were to be forwarded; and a teamster, either on his own motion, or otherwise (it does not appear exactly how), without any order or direction of the consignee, took the cask and carried it to the residence of the consignee, where it was directed, and delivered it there, in front of, his house and pla^e of business, in the presence of two of his sons (he being absent), and notified one of them that the cask was for his father.

Subsequently, the consignee refused to receive the property, alleging as the reason that he had never ordered it; and by his direction and at his request, the teamster brought it back and delivered it at the place from whence it was taken, to some person who was there; but the agent, Huntley, testifies that he did not know it, and it does not appear that he did know that it was there. It disappeared, and was lost.

The plaintiff’s claim to recover in this action is based upon the ground that the defendants were guilty of negligence; and unless this is made to appear, the action is not maintainable. .

I think the property was lawfully delivered at its place of destination,'at Catskill Point, the end of the defendants’ route, and properly left at the store or warehouse, which was a suitable place for its deposit, for the benefit of and on account of the consignee. Up to • this period of time there was no act done by the defendants which indicates negligence, or exposed the property to injury or loss.

The deposit at the store or warehouse appears to.be in accordance with a well-settled rule of law. When the consignee is absent at the place of destination, the carrier may discharge himself from further liability, by placing the goods in store, with some responsible third person, at the place of delivery, for and on account of the owner (See Northrup v. Syracuse R. R. Co., 5 Abb. Pr. N. S., 428; Williams v. Holland, 22 How. Pr., 137).

In the case at bar, the goods were left with the agent who was in the habit of receiving them; and had they been lost while there, and before they were removed, the fact that the agent was irresponsible might very properly have been urged as evidence of negligence, and have been entitled to consideration in determining the question of the defendants’ liability. But, as the goods were safely kept, and forwarded to the consignee by the earliest and most convenient mode of transportation, and as they were not lost at this time, I am in-dined to think that no question of negligence arises in the case.

If there had been a regular line of transportation between Catskill Point and East Windham, the delivery of the goods to the next carrier on the route, with proper instructions, would have terminated the defendants’ liability (Hewstead v. New York Central R. R. Co., 28 Barb., 485; McDonald v. Western R. R. Corporation, 35 N. Y., 497). As there was no such line, nor any other' convenient means of transportation, and as the one selected was entirely safe, there was no impropriety or negligence in thus forwarding the property to the consignee. It was one way of notifying him of the arrival of the goods. That it was entirely safe, is apparent from the fact that the property was safely delivered to the control of the consignee, so far as was practicable.

That it was not accepted, was not the fault of the defendants, but owing to the plaintiff or the consignee. For the misunderstanding between them, which caused a return of the goods and their loss, the defendants are clearly not liable. Nor, in my opinion, are they responsible because the consignee directed the property to be sent back to Catskill, and because it was brought back by his order.

I think that the duty of the defendants terminated, certainly after the goods were delivered at the place of business of the consignee, if not before; and their liability cannot be renewed and resuscitated by a return of them to the storehouse or warehouse of Huntley. If the consignee ordered the goods, then he is liable upon the delivery, and he cannot shift the responsibility by directing their return. If he did not purchase them, then the plaintiff was in fault in forwarding them to his direction, and has no good reason to complain of the defendants because the consignee returned them.

There was no authority from the defendants, direct or implied, to return the goods to Catskill Point; and to make the defendants liable, at least notice should have been given that they were returned, and were to be taken back by the defendants in their steamboat for the plaintiff.

Huntley, the agent, was not aware of their being returned, and no directions were given as to what they were left for, or what was to be done with the property. Huntley was the agent for three different steamboats, and unless he was advised that the property was intended for the defendants, I do not understand how they can be held liable for his acts. If it be said that he should have notified the owner, the answer is, that the evidence does not show that he had notice of the delivery for the defendants, and hence they are not liable. Huntley being the proprietor of the house where the goods were placed and in store, became thereby the agent or bailee of the owner (Fisk v. Newton, 1 Denio, 45).

In establishing the liability of a common carrier, it must not be overlooked that there must be an acceptance of the goods, and that the responsibility does not commence until the delivery is complete. It is not enough that the property is delivered upon the premises, unless the delivery is accompanied by notice to the proper person (Grosvenor v. New York Central R. R. Co., 39 N. Y., 34, and authorities there cited).

The defendants' were exonerated from liability after the goods were delivered to the consignee, and no steps were taken to bring them within the rule laid down in the case last cited, after they were thus discharged.

In no aspect in which the case can be considered can the defendants be held liable ; and the judge upon the trial, in my opinion, committed no error in his rulings, and properly directed a nonsuit.

A new trial must be denied with costs. 
      
      Present, Hogeboom, Ingalls and Miller, JJ.
     