
    Samuel Lippmann and Julius Lippmann, Appellants, v. The Pennsylvania Railroad Company, Respondent.
    Second Department,
    June 29, 1908.
    Carrier—failure to deliver at stated time — contract without consideration.
    A consignee of goods shipped from Hew Jersey under a cóntract merely requiring delivery in the ordinary course of business cannot recover damages for loss of profits caused by a failure of the carrier to deliver the goods' at three o’clock in the morning, although five years before an agent of the carrier stationed in this State agreed, without consideration, to deliver such goods, if possible, at three o’clock in the morning.
    " Appeal by the plaintiffs, Samuel Lippmann and another, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, rendered on the 11th day of February, 1908, dismissing the complaint after, a trial of the issues.
    
      Frank Herwig, for the appellants.
    
      William F. Allen, for the respondent.
   Woodward, J.:

The plaintiffs bring this action to recover damages alleged to have been sustained by reason of a failure, on the part of the defends ant to- deliver certain tomatoes in time for the fulfillment of the .plaintiffs’contract with third parties. ' The plaintiffs claim that some four or five, years ago they entered into an agreement with the defendant’s agent at its Wallabout station- in the-'borough of Brooklyn, to the effect that,carloads of tomatoes arriving in Jersey 'City during the night, notice of which was to be conveyed to the defendant, should be delivered at the Wallaboiit station by three o’clock in the morning. Plaintiffs say that this agreement was performed tin the part of the defendant until on the morning of July 16, 1906, when a carload of tomatoes, which were then in the possession of the defendant, at the Wallabout station, were refused delivery until five- o’clock in the morning, at which time their proposed customer had been supplied by other parties. The learned trial court, after hearing the evidence, decided that the plaintiffs had failed to establish the cause of action, and dismissed the complaint, with costs, the plaintiffs appealing to this court.'

. We are. unable to' discover that' this alleged agreement with the defendant’s local agent was anything more than a promise on the part of the latter to use his best efforts to deliver goods to the plaintiffs at three o’clock in the morning, falling short of a contract binding upon the defendant, for the very good reason that it is wholly without consideration. There is nothing in the case to show that the defendant was notified of the alleged fact that the goods expected had been contracted- to be delivered at any certain time, and the claim of damages of twenty-five cents per crate-, the difference between the alleged contract price and the price which the goods are- conceded to have brought later in the day, has no proper basis in the pleadings or the evidence. Moreover, the plaintiffs allege that the car, Mo. 101868, in which the goods were.shipped was at- the Wallabout station at three a. m. of the day in ■question, but that the defendant refused to deliver the samei Upon this point there was a conflict of evidence, and the testimony largely preponderates that the particular car! designated did not arrive at the defendant’s Wallabout station until eight-forty-five on the morning in question, and that the tomatoes were delivered to the plaintiffs immediately thereafter. The trial court was justified in finding this fact upon the evidence, and the evidence failing to establish the facts alleged in the complaint as the basis, of the cause of action, the complaint was properly dismissed.

We are of opinion, however, that in any event the plaintiffs would not be entitled to recover, for there is no binding contract shown calling upon the defendant to make deliveries at three o’clock in the ■ morning. The contract of shipment was made by the defendant’s agent at' Swedesboro, H. J., and nothing is shown to indicate that there was any contract to deliver otherwise than in the ordinary course of business. The alleged contract between the defendant’s local agent at Wallabout station some four or five years before, and which was without any consideration, and which the local agent denies having made, is clearly insufficient to justify the plaintiffs’ claim. '

The judgment appealed from should be affirmed, with costs.

Jerks, Hooker, G-aynor and Rich, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  