
    NORTHROP against SYRACUSE, &c. RAILROAD COMPANY.
    
      Court of Appeals ;
    
    
      March Term, 1867.
    Carrier.—Termination oe Liability.—Absence oe Consignee.
    Where the consignee is absent from the terminus of the carrier’s route, ancl has no agent to whom delivery can be made or notice given, the carrier may terminate his liability as carrier, by depositing the merchandise in a warehouse; although it is otherwise of an intermediate carrier, whose duty it is to deliver to the next carrier on a road beyond.
    Appeal from a judgment.
    The facts are stated in the opinion.
    
      Henry R. Mygatt, for the plaintiffs and appellants.
    —I. The defendants’ special responsibility did not terminate by the mere deposit in their own warehouse. Two of the justices of the court below concurred in the Massachusetts rule, that such liability ceased when the goods were discharged from the cars and placed in the defendants’ warehouse. A rule more just, which is deduced from the principles of the common law, has prevailed in this court (Ladue v. Griffith, 25 N. Y., 368). In a recent case this court stated that the doctrine maintained in the Massachusetts cases was in conflict with the views thus expressed, and to that extent they have not concurred therein (McDonald v. Western R. R. Corp., 34 N. Y., 503).
    II. The liability of the defendants, as common carriers, had not ceased at the time of the fire which consumed the wheat. (1.) The duty of the railroad company to deliver the wheat could not be discharged until the unlading thereof in a suitable place at the end of the carrier’s route, for removal by the consignees ; and notice to the latter of the arrival of the goods and the readiness of the carriers to deliver; and the lapse of a reasonable time after such notice to give the plaintiffs opportunity for removal. (2.) In support of the principle that the discharge of the carriers’ liability was contingent upon the giving and receipt of notice, the counsel cited and commented upon the opinions rendered in the general term of the court below; the opinion of Justice Allen, in Cary v. Cleveland & Toledo R. R. Co. (29 Barb., 45); the decision of Justice Bronson in Hollister v. Nowlen (19 Wend., 241; 2 Kent Com., 608; 2 Pars. on Cont., 5th ed., 189, 190 ; The Mary Washington v. Ayres, 5 Am. Law Reg. N. S., 692). (3.) The law of this court is in harmony with those wise maxims of public policy and convenience upon which the common law liability of the carrier is said to rest. It is well settled that where goods are shipped to pass through the hands of several intermediate carriers before arriving at their place of destination, the duty of each is to transport the goods safely to the end of his route, and deliver them to the next carrier on the route beyond ; and that such an intermediate carrier does not relieve himself from liability by simply unloading the goods at the end of his route and storing them in his warehouse, without delivery or notice to, or any attempt to deliver to the next carrier (McDonald v. Western R. R. Co., 34 N. Y., 497, and cases there cited). The principles enunciated in these cases may be regarded as decisive where the delivery, as in the case at bar, was at the end of the route (See, also, Price v. Powell, 3 N. Y. [3 Comst.], 323). In Ladue v. Griffith (25 N. Y., 368), the court say : “When a carrier deposits property in his own warehouse, at some intermediate place in the. course of his own route, or at the end of the route where it is his duty to to deliver it to the owner, his duty, as carrier, is not completed, and he will remain liable as carrier for any loss for which common carriers are ordinarily responsible.” This opinion by Smith, J., was concurred in by Justices Davies, Wright, Selden, and Sutherland. (4.) The rule of strict responsibility which the common law attaches to carriers, has not been relaxed in this court. The consignee* cannot attend at the precise moment when his goods arrive, to receive and take care of them. At the earliest possible time plaintiffs sent for their wheat. Greater diligence has not been exercised by the intermediate carriers in the cases cited. From analogy to this rule, and according to the reason on which the liability of carriers is founded, can a railroad company be discharged without actual delivery, without notice of the arrival, and without the possibility that the consignee, without any diligence, can obtain his goods ? (5.) The defendants were at first common carriers, and subsequently ware-housemen for hire. (6.) What is reasonable time is a question of law (2 Pars. on Cont., 661; Porter v. Blood, 5 Pick., 54; Darbyshire v. Parker, 6 East, 3 ; 1 C. B. N. S., 114 ; Hales v. London & North-western Railway Co., 4 Best & S., 71). The plaintiffs were not bound to any greater diligence than reasonable convenience in sending for their goods.
    III. As this is a case agreed upon without action, the judgment should be reversed and directed to be entéied absolute for the plaintiffs for §66.32, with interest from . Aug. 22, 1859, with costs.
    
      S. S. Davis, for the defendants and respondents.
   Davies, Ch. J.

—The defendants were common carriers, and agreed to transport for the plaintiffs a cei tain quantity of wheat from Tully, in the county of Onondaga, to Chenango Forks, and which was duly transported by the defendants upon their railway from Tully to Chenango Forks. Said wheat was in twenty-two bags, and directed to the plaintiffs at Chenango Forks, at a place called Chester Yillage. It appears that no one being present to receive said bags of wheat on tlieir arrival, at their place of destination, the said bags of wheat were deposited by the defendants in their freight-house at Chenango Forks, at four o’ clock in the afternoon of the 8th of August, 1859 ; that the plaintiffs, on the afternoon of the ninth day of August, 1859, received notice that said bags of wheat had been sent from Tully to Chenango Forks ; said bags of wheat were destroyed by fire before the actual delivery thereof to the plaintiffs, on the night of the 9th of August, at about eleven o’clock; and that the plaintiffs sent for said bags of wheat on the tenth day of August.

The precise point presented for adjudication in this case was decided by the supreme court of this State more than twenty years since (Fisk v. Newton, 1 Den., 45). In that case the court said: “So when goods are safely conveyed to the jfiace of destination, and the consignee is dead, absent, or refuses to receive, or is not known and cannot after due efforts are made be found, the carrier may discharge himself from further responsibility, by placing the goods in store with some responsible third person in that business, at the place of the delivery, for and on account of the owner. . . . The risk of the carrier ceased on the delivery of the goods in store.” This seems to be the well-recognized rule, where the goods are carried to the point of ultimate destination—the place of delivery to the consignee (Thomas v. Boston & Providence R. R. Co., 10 Metc., 472 ; Norway Plains Co. v. Boston & Maine R. R. Co., 1 Gray, 263). The case of Fisk v. Newton is cited approvingly by Johnson, Ch. J., in Groold v. Chapin (20 N. Y., 259); and the doctrine there enunciated is repeated and reaffirmed in the same case by Strong, J. He says : “ It is not intended to' decide that common carriers can in no case change their peculiar responsibilities, while they retain possession of the goods confided to them. They may not be able with due diligence to find any one to receive the goods in behalf of the owner, and there may not be any safe place of deposit within their reach, and in such case their duties as carriers would end, and they would then become mere or-ordinary bailees. They may also deposit the goods in their own warehouse, and thus absolve themselves from any further responsibility as common carriers. That, however, can only be where there has been a failure by the owner or his agent to receive them.”

These views are specially pertinent to the case now under consideration. There the carrier, as carrier, had performed his whole duty as such. The goods had securely arrived at their place of destination. The consignee was absent, residing some fifteen miles distant. He had no agent to whom delivery could be made, or to whom notice could be given. Can the consignee, by his neglect of duty in this regard, continue the strict liability of the carrier until it shall suit his convenience or pleasure to call for the goods ? I think not, and that the carrier can properly do what he did in this case—deposit the same in a freight-house—and that then his strict liability as carrier ceases. This court said, in the case of Goold v. Chapin, that the carrier could do this, and then absolve himself from any further responsibility as common carrier. It is a misapprehension to suppose that any contrary doctrine has been enunciated by this court. A brief review of the cases will show this. In Goold v. Chapin (ubi supra) the goods were delivered to the defendants in New York, to be carried to Albany, and there to be delivered to another carrier, to be transported to Brockport, N. Y. ; and the parties to whom the delivery was to be made at Albany, were to receive the goods not as owners, but as carriers. Instead of delivering the goods to the carrier, who was further to transport them, or depositing them in a warehouse until called for by the carrier, the defendants placed them upon a float, where they remained for several days, until consumed by fire. And Hunt, J., in his opinion in McDonald v. Western R. R. Co. (34 N. Y., 497), correctly states the point decided, thus: “This court held that the defendants were liable as carriers ; that the notice to the Atlantic line, and their unreasonable neglect to take the goods, did not exempt them ; that, to exempt themselves, the carriers must store the goods in a warehouse, or in some other way clearly indicate a renunciation of the relation of the carrierand he adds, “The court held that, as there was neither a deposit in a warehouse, which would have indicated clearly a renunciation of the carrier’s liability, or a delivery to the carrier by canal, which would have fulfilled the duty of the first carrier, the defendants were liable.” In Ladue v. Griffiths (25 N. Y., 364), the facts were that a warehouseman at Buffalo, who was also a carrier on the Erie Canal, used to receive freight from the West and forward it to the East by the first boat going, whether his own or that of other carriers. He received goods shipped from Detroit, addressed to his care at Buffalo, and marked to go from ‘ Buffalo to East Albany, at 30 cents per 100 lbs.”' The presumption, from these facts alone, this court held, was, that the goods came to his possession as a carrier, and having been burned without his fault, while in his warehouse awaiting transportation, he was liable for their value. This decision was placed on the distinct ground that public policy, in this country of long routes and frequent transhipment, forbids any intendment which would favor an intermediate carrier in divesting himself of that character, and assuming the more limited responsibility of a forwarder. In McDonald v. Western R. R. Co. (ubi supra) it was held that “ where goods were shipped and must pass through the hands of several intermediate carriers before arriving at the place of their destination, the duty of each intermediate carrier is to transport the goods safely to the end of his route, and deliver them to the next carrier on the route beyond. That an intermediate carrier, in such case, does not relieve himself from liability by simply unloading the goods at the end of his route, and storing them .in his warehouse, without delivery, or notice to, or any attempt to deliver to, the next carrier.”

These cases are all based upon the controlling fact, that the carrier in whose custody the property was destroyed was an intermediate carrier, and that in no instance had the goods reached their ultimate destination. That such intermediate carrier could not change the character of his liability by a deposit of the goods in a warehouse. But not one of these cases infringe upon the doctrine of Fisk v. Newton, but on the contrary, recognize it as sound law. We think the rule laid down in this latter case is controlling upon that now under consideration, and that upon the circumstances discussed in this case, the liability of these defendants as common carmes ceased when they safely transported the property in question to the point agreed upon, and that the consignees being absent at the time of i. ¡ delivery, and they having no agent there to receive the same, or to whom it could be delivered, or to whom notice of its arrival could be given, it was the duty of the carrier, and his whole duty, to deposit the same in a warehouse, and therefore these defendants ceased to be liable as common carriers.

The j adgment appealed from should be affirmed, with costs.

Bockes, J.

—The parties made and presented a case to the supreme court for adjudication, without action, pursuant to section 372- of the Code of Procedure. Judgment was ordered for the defendants, and the plaintiffs appealed to this court.

The case agreed upon by the parties discloses the following facts : The defendants, on the 8th of August, 1859, received from the plaintiffs, at Tully, for transportation, twenty-two bags of wheat, directed to them at Chenango Forks. The property arrived at the latter place on the same day, and was, at 4 p. m., placed in the defendants’ freight-honse, where it remained, without actual delivery to the plaintiffs, until the next succeeding evening, when, at about 11 o’clock, it was, with the freight-house, destroyed by an accidental fire. The plaintiffs were merchants and millers,, and resided at Centre Yillage, fifteen miles from the depot at Chenango Forks. They received notice that the wheat had been sent foward from Tully to the Forks on the afternoon of the 9th, and sent for it on the following day, when they learned that it had been destroyed by fire the evening previous.

The question is whether, on the facts stated, the defendants were discharged from their liability as common carriers. It seems they had conveyed the property safely to its place of destination, and, no one "being- there to whom they could make delivery, it was deposited, according to the usual course of "business, in the freight-house. While the defendants were "bound to deliver the property according to the usual course of trade or business, they were not required to go or send to the plaintiffs’ residence, fifteen miles away, either to make delivery there or to notify them of its arrival. Having transported it safely and with reasonable despatch to the place of destination, and having held it there uninjured for a reasonable time, ready for delivery, the carrier was absolved from liability, as such, in a case like this, where the party resided at a distance, and had no agent at the place to whom notice of its arrival could be given. According to the decisions in Masshchusetts, railroad companies, as common carriers, are discharged when they have transported the goods safely and with diligence to the place -of destination, and deposited them in their warehouse, after a reasonable time has elapsed for the owner or consignee to examine them and take them away (1 Gray, 263; 10 Metc., 472); and it was held in these cases that carriers (railroad companies) were not bound to give notice of the arrival of the goods. In the latter. case above cited, it was said that railroad companies, from the nature of their business and from the means employed, could not deliver goods at the warehouse of the owner, when situated off the line of the road, as a common wagoner could do ; but when they had transported the property safely to the place of destination, and stored it safely in their depot, or warehouse, their duty as common carriers terminated. In this State, however, it would seem to be requisite that notice of its arrival should be given to the consignee, in case he resides or has a place of business at the place of destination, or in its immediate vicinity. But it is not necessary here to consider the question whether the liability of a railroad company, as common carriers, continues until they notify the consignee of the arrival of the goods, and until a reasonable time thereafter has elapsed to remove them, in a case where the consignee resides at the place of consignment, or has an agent there to receive them. The facts in this case do not raise this question. The rule is, stated in general terms, that the common carrier is bound for the diligent and safe transportation of the goods, and for their delivery to the owners or consignees, according to the usual course of business and the nature of his contract. If there be no person at the place of destination to receive the goods, it is enough that they are placed on deposit in a warehouse, and after a reasonable time has elapsed for their examination and removal, his liability as carrier ceases.

The application of these principles to the case before the court will exonerate the defendants from liability. The property had arrived at its place of destination in safety, and had remained in the freight-house uninjured one full day arid part of another. It had not been called for, nor did the owner and consignee reside in the vicinity. It was placed safely in deposit for the owner, and remained so sufficiently long for examination and delivery. Its destruction after that period by an accidental lire, created no liability against the defendants.

The judgment appealed from should be affirmed with costs.

All the judges concurred.

Judgment affirmed.  