
    (69 Hun, 479.)
    BURGEVIN v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Third Department.
    May 9, 1893.)
    1. Carriers of Passengers—Liability for Loss of Baggage.
    A carrier is liable for baggage as a carrier, and not merely as a warehouseman, until the passenger has had a reasonable time to remove it after its arrival at its destination; and what is a reasonable time, ■ where the facts are undisputed, is a question for the court.
    2. Same.
    Where baggage reaches its destination after 6 o’clock in the evening, and the passenger calls for it at 7 on the following morning, he calls within a reasonable time, and the carrier is liable as such if it has been lost in the mean time.
    3. Same.
    Where the agents of a carrier agree with a passenger that his baggage may remain in the station at its destination from its arrival, in the evening, until the following morning, the carrier is liable as such if it is destroyed during the night.
    Appeal from circuit court, Ulster county.
    Action by Julius V. Burgevin against the Hew York Central & Hudson River Railroad Company for loss of baggage. There was a judgment for plaintiff, and defendant appeals.
    Affirmed.
    Argued before MAYHAM, P. J., and PUTHAM and HERRICK, JJ.
    Ashbel Green, (F. L. Westbrook, of counsel,) for appellant.
    D. M. De Witt, for respondent.
   HERRICK, J.

This is an appeal from a judgment rendered upon the verdict of a jury in favor of the plaintiff, and against the defendant, in an action to recover the value of á trunk, and its contents, charged to have been destroyed in a fire which occurred in defendant’s station located at West Park. The plaintiff was intending to go to work upon a place located a mile and a half, or thereabouts, from the railroad station at West Park. He purchased a ticket from Hew York city to Kingston. Kingston is about 10 miles north of West Park. He purchased the ticket for the train leaving Hew York at 4:15 in the afternoon. He then went to the baggage master and told him that he wanted his trunks checked to West Park; that he was going to West Park; that he had no way of staying there overnight; that he would like t0o leave the trunks overnight, if they would be all right; that he told him that he was going to Kingston; that he would be down on the first train in the morning; and the baggage master said that that would be all right; that the plaintiff could come the next morning, and get the trunks. The plaintiff having two trunks, the baggage master weighed them, charging the plaintiff 25 cents for excess baggage; gave him a check and receipt for them. The train was due at West Park about 6:41 in the evening. The plaintiff took the train. His trunks were shipped, and left at West Park. The plaintiff went to Kingston, stayed there all night, returned to West Park next morning between 6 and 7 o’clock, and found that there had been a fire at the depot, and that one of his trunks had been destroyed. The court held that the defendant was not liable as a common carrier, but simply as a warehouseman, and so only responsible to the plaintiff for negligence in the discharge of its duty as a warehouseman, and it held that there was nothing to go to the jury, except the question of negligence, and upon that issue the jury rendered a verdict against the defendant. I have not stated the facts, or any of the evidence, bearing upon the question of negligence, because, from the view that I have taken of the case, it is unnecessary to discuss that question.

The defendant was liable as a common carrier for the plaintiff’s baggage until it arrived at West Park, and until the plaintiff had a reasonable time to remove it. Roth v. Railroad Co., 34 N. Y. 548; Burnell v. Railroad Co., 45 N. Y. 184. As to what is a reasonable time, it was said in the Burnell Case that it cannot be definitely determined, but must be left to the circumstances of each case; and, when there is no dispute as to the facts, what is such a reasonable time is a question of law for the court to decide. Hedges v. Railroad Co., 49 N. Y. 223. In the Roth Case, where, as was ■stated in Burnell v. Railroad Co., 45 N. Y. 187, “the rule of exemption from strict liability was carried to the utmost limit of propriety, to say the least of it,” the facts were as follows: The carrier “transported the passenger and his trunk to the place of destination, and was ready to deliver it on arrival; but the passenger, who accompanied it, and therefore had notice of its arrival, neglected to receive it, and left it in the carrier’s possession, not because it was unsafe or improper for him to take it, but because he preferred to leave it at the depot overnight, rather than carry it to his, lodgings.”' There was no agreement, understanding, or permission by which the baggage was permitted to remain in the depot overnight. The court, in announcing its decision, stated that it was strictly in view of the special facts of the case; that the rules that it laid down were not intended to apply “to the case of the baggage of a passenger, who, with the knowledge and consent ■of the agents of the railroad company, stops at an intermediate station on the road over which he has contracted to be carried, intending to pursue his journey on a subsequent train, and left his "baggage in the keeping of the carrier in the mean time.” Upon the undisputed facts in this case, it seems to me, as matter of law, the responsibility of the defendant as a common carrier did. not cease before the time of the fire. The baggage had arrived at West Park between 6 and 7 o’clock in the evening, and it seems to me that in the case of trunks arriving in the evening a delay in calling for them until the next morning is not an unreasonable delay; and again, in this case, we have almost the identical facts suggested in the Roth Case,—of the knowledge and consent of the agents of the railroad company (see 34 N. Y. 554) that the baggage should remain in the keeping of the carrier. It seems to me, therefore, that the holding of the trial court was more favorable to the defendant than the facts entitled it to, and that it has not been injured thereby, or by any of the rulings of the court upon the admission of evidence relative to the question of negligence, and that the judgment should be affirmed, with costs. All concur.  