
    Louis Diamant, Respondent, v. The Long Island Railroad Co., Appellant.
    (Supreme Court, Appellate Term,
    February, 1900.)
    1. Common carrier — Not excused from tendering freight by a clause in the bill of lading which permits the carrier to store it.
    Where a bill of lading of freight requires the carrier to tender it to the consignee, the carrier is not excused from making some tender, either actually or through a notice of the arrival of the goods, by a separate and distinct clause of the bill of lading which declares that the carriage of the merchandise shall be complete, “ when it has been held a reasonable time without notice, say twelve working hours ” subject to the owner’s order at the point of delivery, and that, ’if the consignee had then failed to remove it, the carrier may store it at his expense and risk without notice, as the latter clause, while changing the nature of the carrier’s liability, cannot excuse it from failing, to make any tender whatever to the consignee.
    
      ¡2. Same — Evidence of custom inadmissible.
    Under such a bill of lading, evidence of a custom, dispensing with a tender in the case of freight, is inadmissible.
    MacLean, J., dissented.
    Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Hew York, fifth district, borough of Manhattan.
    William J. Kelly, for appellant.
    Louis Diamant, respondent, in person.
   Leventritt, J.

This action is brought for the breach of a contract of carriage, and the precise question to be determined is whether, under the conditions of the bill of lading, the defendant’s obligation was limited to a mere transportation of the goods, without giving notice of arrival or making tender of delivery.

On the 22d day of August, 1898, one Marculescu forwarded by the defendant a box of groceries directed to one Harry Diamant, a private in the Seventy-first Eegiment, Hew York Volunteers, encamped at Montauk Point, after the return of the troops from Cuba. On the following day the plaintiff similarly sent to Diamant a box of fruit. Both shipments were made as freight, and neither ever reached the possession of Diamant. Marculescu assigned his claim against the defendant to the plaintiff, who thereupon brought this action to recover the value of the contents of both boxes. It appears that the packages arrived at Montauk Point, no later than the 25th day of August, 1898. Between that date and the twenty-seventh of that month when the regiment left the encampment, Diamant, according to his testimony, made frequent attempts to locate, and secure the delivery of, the goods consigned to him. He applied at a temporary shed erected in close proximity to defendant’s passenger station where, he states, both freight and express packages were stored. He then made inquires of several agents, one of whom he describes as the “ headman ” or the “ head agent of the Long Island Railroad Company ”, He says that he also inquired at the station and of every man- in charge, and that they declined to overhaul the large accumulation of packages for the purpose of finding his. The defendant asserts that the temporary shed was used exclusively for express packages and not for freight; that the only freight office was located in the passenger station, where all applications and inquiries should have been made; and that all freight deliveries were made directly from the cars, there being no structure or building for that purpose. It appears that, throughout the period, there was a very great congestion of freight with very limited facilities for handling it. One hundred and fifty to two hundred cars loaded with freight were stalled on six of seven sidings near the station. The defendant admitted that it was customary to notify consignees of the arrival of goods, either by postal card or through the agency of a personal representative. The record does not disclose any notice to Diamant until the 12th day of October, 1898, when a postal card was addressed to him at his New York residence. There was concededly no tender. Each of the parties' to this litigation invokes a condition on the bill of lading in support of a right to judgment. The plaintiff relies on the first condition, which reads: “ It is mutually agreed by this contract that the Long Island Railroad Company shall transport the merchandise named herein with all due care and despatch to its destination * * * and tender it to the consignee * * * in the same good order and condition in which it was receipted for at point of shipment ”, and claims that the defendant’s liability continued until tender was made.

The defendant argues that the scope of this provision is restricted by a subsequent one which reads: " The carriage of said merchandise shall he complete and freight charges earned when it has heen held a reasonable time without notice say twelve working hours, subject to the owner’s order at the station or place where it is above agreed to be delivered, and if not then removed by the person or party entitled to receive the same, it may be removed and stored or kept ih the car, station, or place of delivery of the carrier, or otherwise, at the sole risk and further expense of such person or party without notice.”

We are of the opinion that the judgment rendered in favor of the plaintiff is justified both in law and in fact. The first clause required tender; the other did not dispense with it. The two provisions are not inconsistent. So far from modifying each other, they are not even connected. They are separated on the face of the contract by a number of intervening clauses whose subject-matter is foreign to both. The first clause provides for the carriage and delivery; the other to a limitation of the carrier’s liability as an insurer and the commencement of that as a warehouseman. The completion of the carriage referred to cannot be regarded as dispensing with the express obligation to tender assumed by the defendant, made in recognition of the law that some notice to the consignee is necessary. McKinney v. Jewett, 90 N. Y. 267; Brand v. New Jersey Steamboat Co., 10 Misc. Rep. 128. The requirements of the tender would have been satisfied by mere notice to the consignee, but the tender would at some time have to be made, and, giving effect to the clause invoked by the defendant, would at most have changed the nature of the defendant’s liability at the time of such tender. Even granting the construction contended for by the defendant and charging the consignee, in the absence of notice, with the unreasonable duty of making constant inquiries, and seeking his goods among the ISO1 or 200 cars, the fact would still remain that he testified to demands made for his property and an admission that it was on hand. That testimony, though contradicted, would in itself have justified the finding in his favor.

The evidence which the defendant sought to introduce on the subject of á custom dispensing with the requirement of tender in the case of freight shipments as distinguished from express shipments, was obviously incompetent in view of the express contractual stipulation to tender. The judgment below was correct and should be affirmed.

Freedman, P. J., concurs.

MacLean, J.

(dissenting). One Harry Diamant, a private in the Seventy-first New York State Volunteers, was, with his regiment, from the 14th or 15th of August, 1898, to the morning of the twenty-seventh of that month, in encampment at Montauk Poinf, where, so far as appears, the defendant had neither office nor depot, and which was about twp miles from the defendant’s railway staHon. The defendant carried wares classed as freight and as express matter, receiving them at different depots. Express matter is charged for at a higher rate of compensation, and it delivered wares of that class, by its wagons, to persons in the different streets of the encampment. On August twenty-third, the plaintiff herein bade a boy take a box of fruit to the Long Island Eailroad Company to be shipped to Harry Diamant. The boy delivered the box at the freight depot of the defendant and took therefor a “ freight receipt ”, which he gave to the plaintiff, and which the plaintiff kept until the bringing of the present action. The plaintiff wrote Ms brother Harry the following day, August twenty-fourth, "that he had sent the box “ yesterday morning by express ”. "Thus misinformed, and so misled, Harry Diamant went to the temporary structure of the defendant for the reception of express matter and asked for his box, taking out the letter received from Ms brother and showing that the box had been shipped. During the one or two remaining days of his sojourn, he also inquired of the drivers of express wagons, delivering.parcels about the camp, ■for the package above mentioned, and for another* similarly shipped hy another person, whose claim is included in tMs action by assignment. He never made any inquiry, however, at the railway station of the defendant, where it had a freight agent in an office adjoining the passenger station, nor did he ask any one in or about the freight cars standing upon sidings in wMch freight was kept in the absence of a depot to receive the sudden influx of such matter at Montauk, and the only goods he saw being taken from the cars, were “from express cars and these express cars were attached to the regular passenger trains ”. It is true that when directly led thereto by his brother, the plaintiff, and his counsel herein, the soldier said he went "to the head man, the head man of the Long Island Eailroad Company, the chief man there; but it is also true that he said, upon cross-examination, that he only inquired of the men whó ran the wagons and of the persons in the sheds where the wagons came from. Has only inquiries were, therefore, and naturally, about express matter and of people charged with the handling of express matter. The packages were not delivered to the •consignees, nor did the defendant give him any notice that they had reached Montauk. It is claimed by the plaintiff that the defendant is 'liable in damages for the loss of goods because the first condition printed upon the back of the freight receipt is: “It is mutually agreed by this contract that the Long Island Eailroad Company shall transport the merchandise named herein with all due care and despatch to its destination or to the terminus of its line in the direction of destination and tender it to the consignee * * * in the same apparent good order and condition in which it was receipted for at the point of shipment ”. But the first and most prominent condition of the carrier’s undertaking, and that not upon the back but upon the face of the papers, was: “ It is understood and agreed that this receipt is only to this carrier’s terminus”. That, for present purposes, was the station at Montauk, and not the site of the encampment two miles away. It was provided, too, in another condition upon the back, that “the carriage of said merchandise shall be complete and freight charges earned when it has been held a reasonable time without notice, say twelve working hours, subject to the owner’s order at the station or place where it is agreed to be delivered, and if not then received by the person or party entitled to receive the same, it may be removed and stored or kept in the car, * * * of the carrier, or otherwise, at the sole risk and further expense of such person or party without notice ”. This special agreement takes the present case out of the rule laid down in McKinney v. Jewett, 90 N. Y. 267, 270, upon which the plaintiff relies, and wherein it was held that, in the absence of special contract or proven custom, the stringent liability of a common carrier obtains until after actual delivery of the goods or, tantamount to delivery, until notice shall be given to the consignee and the expiration of a reasonable time for removal of the goods. As the defendant proved that it had a freight agent and office in the building in which was also its passenger station at Montauk, the end of its line quoad hoc, the learned justice erred in holding, as he did,'that, as the contract called for delivery of the freight at the station of the company and the goods remained for several weeks aboard the cars and were never delivered at any station at all, the consignee could not be expected to go around and inquire for his goods, and thereupon gave judgment for the plaintiff. It was also error, on the part of-the learned justice, to- exclude the evidence proffered as to the custom of the defendant and of other railroad companies respecting the difference between freight and express matter. For these errors the judgment should be reversed.

Judgment affirmed, with costs to respondent.  