
    James B. Ryer et al., Respondents, v. The Pennsylvania Railroad Co., Appellant.
    (City Court of New York, General Term,
    November, 1898.)
    Common carriers—Complaint — Failure to prove that a carrier neither delivered nor returned goods.
    Where consignors fail to prove the allegations of their complaint that a carrier agreed safely to transport to Fort Scott, Kansas, or to return as direction might be given, certain goods shipped, and that it neglected to deliver or to return the goods, no recovery for their value can be had upon proof of an independent agreement of the parties, executed eight days later, by the terms of which the carrier, as agent of the consignors, agreed, upon indemnity, to use all available means to stop the goods in transit and return them to the consignors, no negligence of the carrier in this regard being shown.
    
      Appeal from a judgment in favor of plaintiffs.
    Robinson, Biddle & Ward, for appellant.
    Campbell & Murphy, for respondents.
   Fitzsimons, Ch. J.

The motion made by the attorneys for the defendant, when plaintiffs rested, to dismiss the complaint herein on the ground that plaintiffs had failed to prove the allegations contained therein, should have been granted, as the plaintiffs’ evidence failed to show that they have a cause of action against the defendant.

The complaint alleges that defendant agreed to safely transport or return as directed certain goods shipped by the defendant’s road; that defendant neglected and still neglects to return or deliver said goods to plaintiffs, although required to do so, and that they were lost or destroyed in transit by reason of the negligence of the defendant.

This allegation is one which the plaintiffs, under the denial contained in the defendant’s answer, were required to prove before they could recover herein.

They did not attempt to prove it, in fact ignored it, but upon the trial they consented to have introduced in evidence by the defendant a paper reading as follows:

“ STAE UNION LINE.
Pennsylvania Eailroad. Pennsylvania Company.
(Indemnity Agreement.)
New York, September 18, 1889.
To Agent Union Line:
Dear Sir.— The undersigned shipped by your line from New York city, N. Y., September 10, 1 case &c.
One bale, etc., No. 8819.
No. 8820.
Marked Goodlander Furniture Co., Fort Scott, Kansas.
Please use all available means to stop for us the above-mentioned articles before delivery to consignees and return to us at 167 and 169 Canal street. And in consideration of your efforts in our behalf, we hereby agree to indemnify you against and save you harmless from any suit or legal proceeding, loss, damage, expense, counsel fees, cost and transportation or other charges arising from or caused by your attempt to comply with this request; the full meaning and intent of this agreement meaning that you are to act as our agent in this transaction.
J. B. Eter & Oo.
W. B. Eyer.”

The plaintiffs now claim because of the acceptance by the defendant of such agreement and its failure to return the goods mentioned therein a right to recover the value of the same. This agreement is certainly not the one described in the complaint, what its exact terms were the plaintiffs’ evidence fails to disclose, but apparently it was such an agreement as is described in the answer and required the defendant to ship the goods to a customer of the plaintiffs in .Fort §>cott, Kansas.

The agreement above set forth only required defendant to use all reasonable means to procure the return of said goods to plaintiffs before their delivery to the consignee. It was no part of the shipping agreement and did not entail upon the defendant the same responsibility for the care and delivery of the goods, and the defendant was only liable to the plaintiffs in case they were negligent in executing the terms of said agreement.

There is no evidence in the case even tending to show negligence on the part of the defendant or that it was careless or dilatory in its efforts to procure the return of said goods.

For aught that appears, it may be that the goods not returned reached the consignee before the execution of the return agreement, which was entered into eight days after the shipping agreement.

As stated by us, plaintiffs entirely failed to prove the cause of action set up in their complaint.

For that reason the complaint should have been dismissed.

The facts which they attempted to establish upon the trial failed to show a cause of action against the defendant.

The judgment must be reversed and the complaint dismissed, with costs.

O’Dwyer, J., concurs.

Judgment reversed, and complaint dismissed, with costs.  