
    Roger G. Harrison, Respondent, v. Levi C. Weir, as President of Adams Express Company, Appellant.
    (Supreme Court, Appellate Term,
    April, 1901.)
    Common carrier — Breach of special contract to forward dogs by a particular train.
    Where an express company specially contracts to forward dogs, confined in a locked crate, by a particular train in order that their owner may give them personal attention during the journey, its failure to send them by that train entitles him to recover of it the value of a dog which died because of the long confinement resulting from such failure. „
    
    Appeal from judgment rendered in favor of the plaintiff by the justice of the Municipal Court of the city of Hew York for the second district.
    
      R. R. Rogers, for appellant.
    EL Huffman Browne, for respondent.
   Bischoff, P. J.

Plaintiff delivered a crate containing five dogs to the defendant’s company for carriage to Danbury, Conn., the agreement being that the animals should be forwarded by a particular train, in order that the plaintiff might give his .personal attention to them during the journey. The company failed to perform its agreement, and forwarded the crate upon an earlier train, with the result that it was finally returned to the plaintiff’s address in the city of Hew York, after he had arrived at Danbury. Learning of this at a time when no train was available, he communicated, by telephone, with one of his neighbors and instructed him to deliver the crate to the company again for immediate delivery, and it finally reached Danbury, but, as an incident to the long confinement in the crate, one of the dogs died.

The amount of the judgment is well within the evidence as to the value of this dog and there is no ground for the assumption that any improper items of damage, claimed by the plaintiff, were included. The only question which the record presents, and the sole point taken upon this appeal, relates to the award of damages for the loss of the dog, and, in our view, the case was properly decided. Granting that a common carrier’s liability, as an insurer, does not extend to the carriage of animals, the plaintiff’s right to a" recovery in this case is still unaffected. Hia case is not rested upon the mere fact that the dog died, but upon the company’s breach of its contract to transport the animal by a particular train, and the question of the general liability of the carrier under an ordinary contract of carriage does not arise.

The carrier having made the agreement for a special transportation, the plaintiff was under no obligation to explain the-precise consequences which would follow its breach; assumedly there would be peculiar consequences, otherwise the special mode of0 carriage wa.s unnecessary.

It is quite clearly disclosed by the record that the cause of the dog’s death was an overstrained bladder, which, because of its training, it could not relieve during confinement, and that excessive confinement was due to the defendant company’s breach of its contract can hardly he disputed. Upon discovering the defendant’s failure to perform, the plaintiff did all he could to save himself from loss. He could not return to the city of New York to reship the dogs, because there was no train, the crate could not be opened by others, because he had the key, and he certainly was not required to keep an agent in New York for the sole purpose of attending to the forwarding of these dogs in his absence, in anticipation of the defendant’s failure to perform' the contract which had been made. By enlisting the services of his neighbor, the plaintiff did all that was to be done, and whether the neighbor used all possible dispatch, or not, is immaterial as we view the ease.

The loss of the dog was the proximate result of the defendant company’s breach of its express contract, and to absolve it from liability upon the facts disclosed would be an injustice to the plaintiff, which no principle of law would serve to uphold.

The judgment should be affirmed, with costs.

Leventritt and Clarke, JJ., concur.

Judgment affirmed, with costs.  