
    Benjamin G. Sanford, Resp’t, v. American District Telegraph Company, App’lt.
    
      (New York City Court, General Term,
    
    
      Filed January 19, 1894.)
    
    Master and Servant—Relation.
    A messenger, sent by a district telegraph company in response to a call from one of its boxes, is the agent of the company, for whose negligence it is liable.
    Appeal from a judgment in favor of plaintiff.
    
      George E. Bearons and Bush Taggart, for app’lt; McIntyre & Settell, for resp’t.
   Fitzsimons, J.

The defendant is a common carrier and as such must carry out every contract assigned by it, except where prevented from so doing by the act of God or the common enemy. The question in this case is, did the defendant contract to deliver the plaintiff’s money to his bank for deposit. If so, then in my opinion the judgment herein should be sustained. The defendant has distributed throughout the city about 30,000 call boxes. Some of them are placed in private places others in public places. The one which plaintiff used was situated in the Continental National Bank, and so far as the manager of the messenger department of defendant knows, (fol. 55) it might be in a public place in said bank (see also fol. 74.) In such cases, when, from the call-box is sent word for a messenger to defendant's office, one is sent and lie performs the duty required from him by the caller without first returning to said office, and such is the instructions to such messenger-boy by defendant, (fol. 55.) Such messenger is then the agent of the defendant for the services required and his act is the act of the defendant. His carelessness is its fault for which it is liable. The fact that the defendant had a contract with the Continental National Bank does not concern plaintiff unless his dealings with the defendant were had with reference to such contract which is not the case here. There is ample evidence showing that the boy who undertook to carry defendant’s money to his bank, was one of defendant’s messengers and as above held, its agent, and that he lost the money entrusted to him by his negligence is also apparent and the defendant’s liability for such negligence for the sum of money lost follows. Finding no error the judgment must be affirmed, with costs.

Newburger, J., concurs in result.  