
    Joseph Adler, Respondent, v. Levi C. Weir, President, Etc., Appellant.
    (Supreme Court, Appellate Term,
    December, 1905.)
    Carriers — Carriage of goods — Delivery by carrier — Refusal oí consignee to receive — Failure to notify consignor.
    Warehousing — Liability for goods stolen — Only on proof of negligence.
    A carrier, after having transported goods and tendered them to the consignee, who refuses to accept them, has performed its duty as a carrier and thereafter assumes another relation; and where it appears that the goods had been stolen it will not be presumed, in the absence of proof, that it was the result of the carrier’s negligence, and, as the carrier’s failure to notify the consignor of non-acceptance by the consignee is not, in such a case, the proximate cause of the loss, such failure will not constitute a ground of liability.
    
      Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Mew York, seventh district, borough of Manhattan.
    Guthrie, Cravath & Henderson, for appellant.
    Emanuel J. Livingston, for respondent.
   MacLean, J.

The plaint of the plaintiff is that, on August 25, 1904, he delivered a package of men’s trousers to the defendant, the United States Express Company, consigned to one George Chylak, Olyphant, Pa.; that the United States Express Company delivered said package for transportation to the defendant, the Adams Express Company; that, thereafter, the latter company, tendering delivery and the consignee refusing to accept, the package was returned to the office of the Adams Express Company; that the defendant failed and neglected to notify the plaintiff, the consignor, of non-acceptance by the consignee; and that, thereafter, he was informed that the package had been stolen or lost, and for that reason could not be returned to him. The action was discontinued as to the United States Express Company, and part of the package of trousers was returned to the plaintiff at the trial. When the carrier transported and tendered delivery to the consignee and the consignee refused to accept, it performed its duty as carrier, and thereafter assumed another relation. While it has not been flatly determined in this State that notice under any and all circumstances to the consignor by the carrier is not required, the cases cited, containing expressions looking that way, seem to be cases where the consignor had been otherwise apprised of the fact, or where there had not been a complete refusal to accept by the consignee. Assuming, but without deciding, that it was the duty of the carrier herein to notify the consignor of the refusal of the consignee to accept, it must be determined that its failure so to do was not proximate to the loss of the goods, and where the refusal to deliver is explained by the fact appearing that the goods have been lost, either destroyed by fire or stolen by thieves, and the bailee is therefore unable to deliver them, there is no prima facie evidence of his want of care, and the court will not assume, in the absence of proof on the point, that such fire or theft was the result of his negligence.” Claflin v. Meyer, 75 N. Y. 260, 262. Loss by theft herein appearing, the plaintiff was not entitled to recover in the absence of proof that the defendant as bailee was negligent.

Scott and Bisoi-ioee, JJ., concur;

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