
    John Murray, Appellant, v. The New York Central and Hudson River Railroad Co., Respondent.
    (Supreme Court, Appellate Term,
    May, 1906.)
    . Carriers — Carriage of goods: Carrier as warehouseman — Liability in capacity of warehouseman; Actions against carriers — Sufficiency of evidence — Want of ordinary care.
    Where the shippers to themselves of goods, which were not called for by the person for whom they were intended and were accordingly stored in a storage warehouse at the place of destination pursuant to section 46 of the Eailroad Law (L. 1890, ch. 565), gave up to the carrier’s agent the original bill of lading and took a duplicate thereof erroneously dated a year later than the original and gave the carrier an agreement of indemnity, mating the carrier the shipper’s agent as to the goods; and where, afterward, the shippers ordered the goods returned to the place of shipment but the goods could not be located on account of the error in the date of the duplicate bill of lading and the failure of the carrier’s agent at the shipping point, in his letter to the agent at the place of destination ordering the return of the goods, to state the year when they were shipped, although the carrier had in its possession the original bill of lading bearing the correct date, and the goods were not returned to the shippers but were sold by the warehouse, held that the carrier failed to use ordinary diligence in locating the shipment and the shippers were entitled to recover their damages in consequence thereof.
    Appeal by the plaintiff from a judgment dismissing the complaint, rendered in the Municipal Court of the city of Mew York, tenth district, borough of Manhattan.
    
      Walter L. Bunnell, for appellant.
    Charles C. Paulding (William Man, of counsel), for respondent.
   Clinch, J.

The facts are not in dispute. On October 19, 1904, plaintiff’s assignors Ferris & Kenworthy shipped to Buffalo two cases of duplicators consigned to “ Ferris & Kenworthy or order; notify J. H. Smith, Buffalo, N. Y.” The property-was unclaimed at Buffalo and, under section 46 of the Eailroad Law, was stored in a storage warehouse. On October 23, 1905, Charles A. Kenworthy called at the office of L. M. Allen, the general eastern freight agent of defendant, told a Mr. Luyster, an employee of defendant, that the goods in question had been the subject of a law suit and that he had just got the bill of lading and asked what he thought the charges would be on it; stating that, if they were going to be heavy, he “ would rather go without the goods than pay twice what they are worth.”, Luyster informed him: “You have got to take that chance.” Whereupon Kenworthy said: “All right,” gave him the original bill of lading and took a duplicate bill as a receipt, signing, at the same time, an indemnity agreement which constituted defendant as plaintiff’s assignors’ agent for the purpose of returning the shipment to them (Ferris & Ken-worthy) and agreed to save the company harmless “from any law suit, legal proceeding, loss, damage, expense, counsel fees, costs and charges arising from or caused by your attempt to comply with this request.”

It appears that the duplicate bill of lading was incorrectly dated October 19, 1905, instead of October 19, 1904. The indemnity agreement seems to have had the date changed, but the agent who made it out swears that when it was signed it was dated 1905. However this may be, the defendant’s agent Allen wrote to the Buffalo agent Pollock ordering the goods returned. In that letter of advice the waybill was referred to as simply October nineteenth, no year.being given. The Buffalo agent was unable to locate the shipment and so notified the FTew York agent Allen by a penciled memorandum on the foot of his (Allen’s) letter which was returned. Allen’s letter was dated October 27, 1905, and the reply from Pollock, the Buffalo agent, was received October 31, 1905. Nothing further was done by the railroad company, and the goods were sold by the warehouse in Buffalo on November 7, 1905.

Plaintiff seeks to hold the defendant responsible on the theory that it was negligent in not having gotten the goods from the storage warehouse between the dates of October 23, 1905, and November 7, 1905. It seems to be apparent that the defendant’s agent, who had the original waybill, was careless in not making out the duplicate waybill as of 1904 instead of 1905; and also making the same mistake as to the indemnity agreement. And the letter of Allen to Pollock was written carelessly, in that it contained no year date and hence failed to secure a prompt location of the shipment. As to this defendant contends that Ken-worthy signed the indemnity receipt when it was incorrectly dated; and also took away the duplicate waybill bearing an incorrect date. That is no doubt true. But the indemnity receipt and the duplicate waybill were made out by defendant’s own agent; and he had in his possession, and the company retained throughout, the original waybill which contained the correct date and upon which they were bound to act. It is clear that, with ordinary diligence, inasmuch as they put the goods in the storage warehouse and must have held its- receipt, they could have located the shipment- and started it back before November seventh when the goods were sold. They cannot deny the authority of Luyster to contract for them. The indemnity agreement is addressed to Allen, their general eastern freight agent; and his letter to Pollock, the Buffalo agent, is a sufficient ratification of the contract of employment, whatever that may be. I am of opinion that the contract was sufficient to hold the defendant liable. Kenworthy gave it the waybill and, as the goods were still constructively in fts possession, it should have made proper efforts to return them. It (the defendant) was specially constituted Ferns & Kenworthy’s agent for this purpose and was indemnified for all expenses, “ costs and charges ” being particularly specified which would, it Seems, require it to pay the warehouse lien, if necessary, and see that the goods were shipped hack. Or, if that was impossible, it was at least incumbent upon the company to notify Ferris & Kenworthy, that they might make such arrangements to defray this expense as were necessary. It failed to use ordinary diligence, and it failed because of the carelessness of an employee to locate the shipment.

The judgment should he reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and.Davis, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  