
    FREEMAN v. WINKLER et al.
    (Supreme Court, Appellate Term.
    March 14, 1907.)
    Oaeriers — Carriage of Goods — Failure to Deliver — Evidence — Sufficiency.
    In an action against defendants as common carriers for failure to deliver certain goods, evidence examined, and held insufficient to show the alleged failure to deliver.
    Appeal from Municipal Court, Borough of Manhattan, Fourteenth District.
    Action by Solomon Freeman against John Winkler and another. Judgment for defendants, and plaintiff appeals. Affirmed.
    Argued before GILDERSLEEVE, P. J., and DAVIS and HENDRICK, JJ„
    Fleischman & Fox, for appellant.
    William Willett, Jr., for respondents.
   GILDERSLEEVE, P. J.

This action was brought to recover for damages alleg-ed to have been sustained by the plaintiff, because of the alleged failure of the defendants to deliver certain goods at the residence of the plaintiff at Arverne, Long Island, which had previously been placed in the possession of the defendants as common carriers. The action was tried before a jury, and the verdict was for the defendants. From the judgment entered upon this verdict the plaintiff appeals, on the ground that the verdict is against the weight of evidence.

The plaintiff employed the defendants to carry articles of furniture and other things from his residence in New York City to his residence at Arverne, Long Island. The defendants’ driver appeared at plaintiff’s New York residence, received the goods delivered to him by plaintiff, placed them carefully in his wagon, covered them with burlap, and conveyed them to plaintiff’s residence at Arverne, Long Island. All the goods he received at the New York residence he says he delivered at the Arverne residence; that at no time during the transit, of these goods were they out of his sight. When the defendants’ driver arrived at Arverne, the plaintiff was there, directed as to the disposition of the goods, and received them in his residence. Plaintiff and his witnesses described the packing of the goods and the delivery of them to the defendants’ driver. This is conceded by the defense. The plaintiff and his witnesses then testified as to what took place when the goods were delivered at the Arverne residence that same night. The plaintiff says:

“They brought the stuff in the office. We didn’t take count of anything that came in, because we were tired. I told him (the defendants’ driver) to pack them all in one room; and they brought it in, except one trunk, which they carried around the other way. We never took account of anything. Q. So you did not examine anything that was delivered there that night? A. No, sir.’’

When the driver arrived at Arverne in the evening, plaintiff did not observe how many boxes were delivered. He directed the driver to pile the stuff on one side in the office. The plaintiff’s wife, Theresa H. Freeman, testified:

“Nothing was examined that evening; simply put in as rapidly as possible.”

Plaintiff’s witnesses then say that plaintiff locked the door in which the goods were placed, leaving the key in the door, and also bolting it; but the room was accessible to any of the occupants of the house. The next morning he arose; did not' go to the room, but went fishing. He returned about half past 4 o’clock in the afternoon, and learned that other members of his household had discovered at 9 o’clock in the morning that the box of goods, alleged to have been lost, was missing. The plaintiff’s witnesses, therefore, do not positively testify that the defendants failed to deliver at Arverne all the goods received by their man in New York that same night. They only testify that the next morning at 9 o’clock a box was missing. The simple fact presented to the jury was:

“Did the defendants deliver to the plaintiff at his Arverne residence all the goods received by them for cartage at his New York residence?”

The defendants’ witness, the driver, testified that he did, and the jury had a right to believe him. There are no questions of law requiring discussion, and the judgment should be affirmed, with costs.

Judgment affirmed, with costs. All concur.  