
    Emanuel Myerson, Respondent, v. William H. Woolverton, as President of The New York Transfer Co., Appellant.
    (New York Common Pleas—General Term,
    June, 1894.)
    In an action against a transfer company for injury to baggage, the railroad check for which was given to its agent before the plaintiff reached his destination, it is not incumbent upon the plaintiff to show that such baggage was in good condition when received by the defendant, but proof that it was delivered in good condition to the railroad company is-sufficient t-o throw upon the defendant the burden of showing that it was not received by it in the same condition.
    Appeal from a judgment- of the District Court in the city of Rew York for the ninth judicial district, rendered by the justice, without a jury, in favor of the plaintiff.
    Action to recover for the loss of baggage by reason of negligence.
    
      Ricard H. Mitchell, for respondent.
    
      JEJ. Russell, for appellant.
   Bischoff, J.

The action was brought to recover the value of certain articles alleged to have been lost from the plaintiff’s valise when in the 'custody of the Rew York Transfer Company, an association of which the defendant was president, under a contract for the transportation of the said piece of baggage from the terminus of the Pennsylvania Railroad Company to the plaintiff’s place of residence in the city of Rew York.

Plaintiff proved the delivery of the valise and contents intact to the railroad company at Portland, Oregon; that the baggage check issued to him by the railroad company for the same was delivered to the defendant’s agent; that he, the plaintiff, had not seen the valise during the interval between his delivery of it to the railroad company and the defendant’s delivery of the same to him; that when so delivered it was found to be cut open and part of its contents discovered to have been abstracted. One of the defendant’s witnesses testified that the valise was received from the railroad company “in good order;” that otherwise it would not have been accepted for transfer by the defendant’s company. It appeared, however, that this “ good order ” merely implied a sufficient state of repair to enable the baggage to be handled without actual loss of its contents, and the plaintiff’s testimony showed that the valise in question was sufficiently strapped to have come within such requirements when delivered to him, although the lock had been broken and the side slit open with a knife. The justice below found_ in favor of the plaintiff for the value of the articles thus lost, and upon this appeal the sole question presented is whether or not a sufficient cause of action was proven, that is, whether or not it was incumbent upon the plaintiff to show that the valise was in good condition, and, with its contents, intact, when delivered to the defendant’s company: Prom the opinion of the justice, which accompanies his return upon this appeal, it appears that the judgment was based upon the authority of Smith v. N. T. C. & H. R. R. R. R. Co., 43 Barb. 225; 41 N. Y. 620; and the ground taken was, we think, proper.

In the case cited it was held that where goods are delivered for transportation to a carrier whose line connects with that of another carrier, by which connecting carrier the goods must be transported to reach the intended destination, in order to recover against the latter for injury to the goods in transit a plaintiff need not show that they were actually delivered by the first to the second carrier in good condition, but, upon proving that they were delivered intact in the first instance, the plaintiff throws upon the defendant the burden of showing that such goods were in fact transferred to him by the first carrier in the condition in which they were by him finally delivered to the plaintiff. The decision proceeds upon the well-established theory that if the subject-matter of a negative averment lies peculiarly within the knowledge of a certain party to the issue, the averment is taken as true unless disproved by that party. Fleming v. People, 27 N. Y. 329, 334; Harris v. White, 81 id. 532, 547; Wennerstrom v., 7 Mise. Rep. 173 ; 57 R. Y. St. Repr. 522; Seaman v. Koehler, 122 R. Y. 646; Wylde v. North R. Co., 53 id. 156. An examination of the authority considered discloses that the contractual connection of the carriers’ lines was not a factor in the ratio decidendi. In view of the fact that the plaintiff here surrendered his baggage check to the defendant’s company upon the train prior to his arrival, or to the arrival of the baggage, at his destination, and thus parted with his means of control over it as against the first carrier, consistently with his agreement with the defendant’s company, it must be held that the rule laid down in Smith v. R. R. Co., 43 Barb. 225 ; 41 R; Y. 620, applies in this case as in the case of any connecting ” carrier.

It was here shown that the plaintiff’s valise was delivered to the railroad company at the commencement of the journey in good and secure condition, and with its contents intact. Thus, it was for the defendant’s company to prove that the valise was not so delivered to it, and this it failed to do, the proof given tending rather to strengthen than to weaken the presumption raised by the plaintiff’s testimony.

For further support of the rule, that where goods are successively carried, while in transit, by different carriers, the presumption is that they were delivered to the latter earner in as good a condition as they were received by the earlier carrier, see Shriver v. Sioux City & St. Paul R. R. Co., 31 Am. Rep. 353; Laughlin v. Chicago & N. W. R. Co., 9 id. 493 ; Beard v. Illinois C. R. Co., 79 Iowa, 518; Dixon v. R. & D. R. Co., 74 N. C. 538; Halliday v. St. Louis, etc., Co., 41 Am. Rep. 309; Lindley v. R. R. Co., 88 N. C. 547.

Upon the evidence the recovery was authorized; the judgment, therefore, must be affirmed, with costs.

Bookstaveb and Pbyob, JJ., concur.

Judgment affirmed, with costs.  