
    Alfonso Bracco, Respondent, v. The Merchants’ Despatch Transportation Company, Appellant.
    (Supreme Court, Appellate Term,
    November, 1908.)
    Damages — Particular contracts and relations— Liability of bailees, carriers, and telegraph companies — Liability of carrier — Liability for delay — Without notice of special circumstances.
    In a suit against a carrier for unreasonable delay in the delivery of a consignment of castings constituting parts of machinery, in consequence of which the consignee had been compelled to procure duplicate parts and therefore declined to receive the consignment, the consignor may not recover the value of the castings, unless it is shown that the carrier had knowledge of the peculiar relations and contract between the shipper and consignee, or that the circumstances were fairly within the contemplation of the shipper and the carrier when the contract for transportation was made.
    
      In such a case, the measure of damages is the difference between the value of the goods when the delivery should have been made and their value when the delivery was actually made.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of ¡New York, first district, borough of Manhattan.
    Alex S. Lyman, for appellant.
    Charles Lex Brooke, for respondent.
   Seabury,

J. The defendant is a common carrier, and the plaintiff shipped by it twelve loose castings and six cases to a customer at Muscatine, Iowa. All of these cases were delivered on August 28, 1907, except one case which was not delivered until September 29, 1907. The shipment comprised machinery, and it is conceded that the machinery was useless without the parts contained in the case which was not delivered until September 29, 1907. The plaintiff, in the meantime, had duplicated the missing parts; and his customer returned this case to him. It is also conceded that the contents in this case were of the value of $192.50. The appellant concedes that “ the only question presented by this appeal is whether or not the item of $192.50 is a proper item of damage in the absence of special notice to the carrier.” There is no evidence to show that the carrier had notice or knowledge of the special use which was to be made of this shipment. Under these circumstances, the shipper can only recover the difference between the value when the delivery should have been made and the value at the time when the delivery was actually made. Sherman v. Hudson R. R. R. Co., 64 N. Y. 254; Katz v. Cleveland, C., C. & St. L. Ry. Co., 46 Misc. Rep. 259. The damages which the plaintiff sustained in this case were the result, not only of the delay, but of the peculiar relations and contract which existed between the shipper and consignee; and the carrier cannot be held for these damages unless it is shown that these circumstances were known to the carrier, or that they were fairly within the contemplation of the shipper and the carrier when the contract for transportation was made.

The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.

Gildersleeve, J., concurs.

MacLean, J. (concurring).

“ The presumption of law is that the consignee is the owner of the goods, in the absence of any evidence on the subject, and is the proper party to sue for their injury or loss.” Krulder v. Ellison, 47 N. Y. 36, 37. The evidence herein does not disclose right on the part of the plaintiff to maintain this action for loss through delay in delivery of goods consigned to another.

The judgment should, therefore, be reversed and the cause tried again.

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