
    The Cochran Cotton Seed Oil Co., Resp't, v. Theodore Haebler et al., App'lts.
    
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed February 6, 1893.)
    
    Sale—Delivery.
    Upon a purchase of property abroad, to be delivered in the city of New York, the carrier is the seller's agent to make such delivery; but on the arrival of the goods at the carrier’s depot in the city, the carrier becomes the agent of the buyer to make actual delivery.
    Appeal from judgment of the general term of the city court, affirming judgment on a verdict directed by the court
    Action by vendor to recover the purchase price of fifty barrels of cotton seed oil, manufactured in South Carolina, and sold “ for October delivery in Hew York city.”
    Defense, no due delivery.
    
      Marshall P. Stafford, for app’lts;
    
      Robert B. Honeyman, for resp’t.
    
      
       Affirming 48 St. Rep., 33.
    
   Pryor, J.

We are of the opinion that the case was well decided by the court below.

The propositions are indisputable that, because of the plaintiff-vendor’s engagement to deliver the oil in Hew York city, the property did not pass until delivery; and that the carrier was the plaintiff’s agent to make the delivery. 2 Corbin’s Benjamin on Sales, § 1040; Magruder v. Gage, 33 Md., 344; 3 Am. Rep., 179; Hobart v. Littlefield, 13 R. I., 342 ; McNeal v. Braun, 53 N. J. Law, 617. But, upon the arrival of the oil in the city of Hew York, at the pier where the defendants knew the railroad company would discharge its freight, there was a delivery of the oil in conformity with the terms of the contract; and from that time forth the company became the agent of the defendants, and the plaintiff was absolved from all responsibility for its conduct. Pacific Iron Works v. The Long Island Railroad Co., 62 N. Y., 272. True, as contends the learned counsel for the appellants, in particulars the case varies from the one at bar; still, for the propositions in support of which it is cited, it is an explicit and decisive authority.

The oil arrived at the pier in the city of Hew York between four and five o’clock P. m., of the 31st October ; and as the plaint- - iff had to the last hour of the day within which to deliver, the delivery was seasonably made pursuant to the contract.

Our conclusion is that, as matter of law, the plaintiff performed I its agreement by due delivery ; but if a question of fact on the evidence, the parties consented, by motions for a verdict, that the judge should determine it, and we are not at liberty to review his decision.

Judgment affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.  