
    Walter Byrne, Appellant, v. James C. Fargo, as President of the American Express Co., Respondent.
    (Supreme Court, Appellate Term,
    December, 1901.)
    Common carrier — As a warehouseman — Reasonable care in storing goods.
    Where consignors of goods sent by express, C. O. D., notify the express company, upon learning from it of the consignee’s refusal to accept the goods, to hold them until the consignors call for them, the express company ceases to be liable to the consignors as a carrier and becomes liable to them only as a warehouseman.
    
      Where the express company stores the goods in its office in the railroad station of the place of destination — a small country place where its agent also performs all the duties of a railroad station agent — and the goods are subsequently stolen at night by persons who have to break open a window of the express office in order to get in it, the company is not liable to the consignors, or their agent, for the value of the goods, as it has exercised reasonable care in storing them.
    Appeal by the plaintiff from a judgment in favor of the defendant rendered by the Municipal Court of the city of New York, . third district, borough of Manhattan.
    George C. Harrison, for appellant.
    Carter & Ledyard, for respondent.
   McAdam, P. J.

On August 14, 1900, plaintiff’s assignors delivered to the American Express Company at Brockport, N. Y., a box containing a suit of clothes, consigned to-one Powers, of Wilson, N. Y., and instructed the company to deliver the clothes to the consignee on payment of the price, twenty-two dollars, and, in the event of its failure to collect said sum, to return the property to the shippers.

The package was forwarded by the company to Wilson, and the. consignee immediately notified; he did not inspect the clothing until August twenty-first following,, and then refused to accept it. The company thereupon notified the consignors of nonacceptance by the consignee, and they on August twenty-second directed the company to hold the property at Wilson until they sent some one there to get the goods. On the night of August twenty-third the premises of the express company at Wilson were broken into and the package in question was taken therefrom, so that when the plaintiff’s assignors’ employee arrived there he could not get the property.

If the shippers had not changed the contract with the company by directing it, instead of returning the property, to hold the package for them at Wilson, the company would probably have remained liable to them as carrier; but we think that the direction to the company to hold the property for the shippers at Wilson fixed its Eability thereafter as that of a warehouseman. So that the question presented is whether, under all the circumstances, the company used reasonable care in the storage of the property.

It appeared that the agent for the express company at Wilson, which is a small country place, was also the ticket agent, freight agent, telegraph operator and baggage-master of the railroad company; that all his offices, including the one in which the express company kept property in its charge, were in the railroad station, and that the nearest house was twenty-five yards away from the station; that an entrance to the express office was made August twenty-third, when the windows and doors were securely locked, by breaking open a window; that the place had been broken into twice before, on one of which prior occasions another window had been broken open and property taken away; that the windows were locked but not barred, and that the agent was in the habit of taking small packages, Eke jewelry and money packages, to his home.

Although we are inclined to think that prior burglaries ought to have made the express company more alert in taking steps to prevent ingress to the express office by means of the windows, we do not feel warranted in disturbing the justice’s finding that, under all the circumstances, the company used reasonable care.

In Grossman v. Fargo, 6 Hun, 313, the court said that the package “ was deposited in the office of the company, where such property, while awaiting delivery, was usually placed and kept. The building was such, as is ordinarily used for deposit by express companies at small towns Eke Pioneer. It was made ordinarily secure by door locks and window fastenings. * * * The felony was effected by an entry through a window. * * * Was it (the window) such, in all respects, as answered the requirements of ordinary prudence, the test being, that degree of care and-attention which men of ordinary prudence, exercise in the protection of their own property? Scarcely any building is, at this day, entirely safe against the mechanical appliances.and skill employed by burglars to effect an entrance. Absolute safety is more than ordinary care and diligence requires. The entry of this building was by force. It seems to have been as difficult as in the ordinary case of small storehouses throughout the country. It was through a window not left open or unfastened and inviting entrance, but fastened quite as effectually as windows usually are, with a view to ordinary protection. It was opened by violence. * * * As above suggested, it is next to impossible to render any structure, or its fastenings, entirely secure against burglarious entry. It is too much* to hold this necessary, to answer the requirements of ordinary care and prudence in the protection of property.” See also Laporte v. Wells, Fargo & Co., 23 App. Div. 271.

Judgment affirmed, with costs.

MacLean and Scott, JJ., concur.

Judgment affirmed, with costs.  