
    Jose Tanco, Jr., Resp’t, v. Henry P. Booth et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 1, 1891.)
    
    1. Replevin—Bight to maintain action.
    Plaintiff, in New York, was requested by L., in Cuba, to purchase for him certain goods, and deliver them to one R., in New York, to be taken by him to Cuba. Plaintiff purchased the goods and delivered them to R., who packed them in a trunk and sent them on board defendant’s steamship. Before the steamer’s sailing. R. changed his mind about going and demanded the trunk, which was refused by the defendants; R. then delivered the key of the trunk to plaintiff, who then demanded the trunk, and being refused brought an action to recover it. Held, that it was not necessary to show authority in R. to deliver the goods back to plaintiff, for he had a right to resume possession in order to carry out the instructions of his correspondent, and that his title in the goods was sufficient to maintain his action.
    3. Carriers—Baggage—Confiscation—Revenue laws.
    Steamship companies are liable for their refusal to deliver baggage left with them by a passenger upon a foreign bound steamer, where it appears that no fraud or concealment was attempted, though their rules were disobeyed, and they suffered it to be carried on board in violation of the federal laws, respecting the manifest of cargo.
    S. Replevin—Parties.
    Defendants, while calling themselves agents of a steamship company, were, in fact, general partners and independent contractors, and were liable in an action of replevin for their refusal to surrender to a passenger his trunk, delivered upon one of their steamers for carriage.
    Appeal by the defendants Booth and Hughes from a judgment of the general term of the city court, affirming a judgment in favor of the plaintiff, awarding him possession of the property claimed in the action, of the assessed value of $400. The action was tried by the court without a jury."
    
      Carter & Ledyard, for app’lts; Felix T. Murphy, for resp’t
   Daly, Ch. J.

—In the month of Movember, 1888, the plaintiff, who resided in the city of Mew York, received a letter from one Llata, then in Cuba, requesting him to purchase certain goods, namely, pistols, jewelry, etc., and to deliver them to one Repico, in this city, to be by him taken to Cuba, agreeing to repay the plaintiff the sum paid by him for said goods, and five per cent commission for his services.

The plaintiff purchased the goods paying therefor $400, notified Repico, and, pursuant to the latter’s instruction, sent them to his house in this city. Repico packed the goods in his trunk with his baggage, and on December 1,1888, sent them to the steamship pier at which the steamship “ Miagara ” was lying, bound for Havana; he intending to take passage on said steamer and to take the trunk with him.

Before the sailing of the steamer Bepko changed his mind about sailing and demanded his trunk, but it was refused. The refusal was by the defendants Booth and Hughes, who were operating the line of steamers between New York and Havana to which the “.Niagara ” belonged, as agents for the New York & Cuba Mail Steamship Company, a domestic corporation which was the owner of the said steamers and engaged in the business of carrying freight and passengers between said ports.

Upon the refusal of the defendants to return the trunk to Bepko he informed the plaintiff of the facts, delivered to him the key of the trunk and told him that he should go and get it as he, Bepko, could not get it back. The plaintiff then demanded the trunk from the defendants and upon their refusal to deliver it brought this action, claiming the trunk and contents as his property. Having obtained them by proceedings of claim and delivery in the action, plaintiff subsequently shipped them to Llata in Cuba and received from him the sum he had expended in their purchase.

The first contention upon this appeal is that this action cannot be maintained because Llata and not the plaintiff was the owner of the goods at the time of his demand and the commencement of this action; that in the purchase and shipment of the goods plaintiff acted as agent of Llata; that if he had a lien for the purchase price he had lost it by delivering the goods to Bepko ; and that even if he stood originally in the attitude of vendor to Llata, yet when pursuant to the direction of the vendee he delivered the goods to Bepko, Llata’s agent, the title passed from him to the purchaser; and that if his title is based upon the redelivery to him by Bepko there is no proof of authority from Llata for such redelivery; that such redelivery would not revest the title in the plaintiff; that the delivery of the key of the trunk was not equivalent to the delivery of the goods, and, if it were, there was no intention on the part of Bepko by that act to confer ownership of the goods upon the plaintiff, but only an intention to use the plaintiff’s efforts in order to regain them himself.

All the circumstances concur in establishing that Beplco’s intention was to surrender the goods back to the plaintiff in order that he might make delivery of them as best be could, and to that end the key of the trunk was given.

The object which Llata originally had in view in having the goods entrusted to Bepko was that the latter should bring them with him to Cuba, and when this mode of transportation became ineffectual, because Bepko concluded not to sail and could not regain possession of the trunk, the responsibility was thrown upon the plaintiff to find some other way of making delivery of the goods he had purchased. It was plainly to effect this purpose that Bepko notified the plaintiff of what had occurred and gave up the key of the trunk.

This act of Beplco’s revested plaintiff with all the rights over and property in, the goods, which he originally possessed, the same as if Bepko had refused to receive the goods in the first instance. No particular form of transfer was required for the purpose. The delivery of the key and authority to demand the trunk was sufficient. It was not necessary to show authority in Repko to deliver the goods back to the plaintiff; if he chose to abandon the voluntary duty of transporting them to Llata, the plaintiff had the tight to resume possession in order to deliver them himself; for this was necessary in order to carry out the instructions of his correspondent.

It is contended, however, that even if the plaintiff, by Repko’s redelivery, was placed in the same position he originally occupied,, he was not the owner of the goods and could not, therefore, maintain this action.

As plaintiff had bought and paid for the goods he was the owner against all the world save Llata, and his right and possession were sufficient to maintain the action. The plaintiff does not claim by virtue of a lien, and is not, therefore, concluded by the fact of the delivery to Repko nor by the allegation of ownership in the complaint.

There remain two objections to the plaintiff’s recovery to be considered: The first is that the shipping of the goods in the trunk as baggage, was an attempt to violate the laws of the United States respecting the manifest of cargo and to defraud the steamship company of its freight, to which unlawful attempts plaintiff, it is claimed, was privy. The second is that the goods when demanded by the plaintiff were in the custody' of the New York & Cuba Steamship Company and the action cannot be maintained against Booth & Hughes, who were merely agents.

The only evidence that the plaintiff was privy to any unlawful design on the part of Repko or Llata, is his admission that he knew that Repko was going to carry the goods as his personal baggage, and that he supposed “ if they went as baggage no freight was to be paid upon them.” The defendants argue from this a design to assist in smuggling the goods into Cuba. Nothing of the kind is established. The facts do not show that any concealment was attempted. The baggage of passengers is subject to examination like packages of merchandise, and there is nothing to distinguish this case from the common practice of passengers to and from foreign ports who, for greater security, take personal charge of particular articles of merchandise where the rules of the steamship companies do not forbid. If any rule of this steamship company was violated it did not give the company the right to confiscate the property. The only authority cited by appellants for such an extreme measure is that of Cantlon v. Alexandre et al, where we affirmed a judgment in favor of defendant, rendered in a district court, it appearing that goods were clandestinely entrusted to the steward of the steamship company to be smuggled. Nothing in the case before us warrants the application of the doctrine on which that decision was based, viz.: That the law will not extend its aid to relieve a party from the consequences of such an unlawful scheme. As to the charge of an attempt to defraud the steamship company of its freight, the plaintiff’s testimony is simply that “if the goods went as baggage,” i. e., if permitted by the steamship company to go as baggage, he supposed no freight would be demanded.

The defendants are personally liable for their refusal to deliver the goods upon the plaintiff’s demand. They received the trunk in the course of their business, which was operating the line of steamers in question. They are the general partners in the firm of James E. Ward & Co., and, while they call themselves agents for the company, they were evidently independant contractors and principals, not servants acting for a master. It is not like McDougall v. Travis, 24 Hun, 590, which was an action against the freight agent of a railroad company, who was merely the servant of the company in whose possession the goods had lawfully come. The argument of the court in that ease is, that if one were in possession of the furniture in one’s own house, a person claiming it could not maintain replevin against the servant who refused to deliver it on demand. There is no question of the entire propriety of that decision, but it is not applicable to the facts of this case.

The judgment appealed from should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.  