
    Edwin H. Mairs, Respondent, v. Baltimore and Ohio Railboad Company, Appellant.
    (No. 1.)
    First Department,
    June 4, 1909.
    Carrier — shipment of goods — alteration of bills of lading—liability of • carrier to third party.
    Where the consignee of certain com meal altered the non-negotiable bills of lading which the carrier liadissued by inserting the words “ order of and notify ” before his name, thus making them negotiable, and transferred them, the carrier, which had no knowledge of and did not consent to the change, is not liable to the assignee for damages sustained by reason of a'delivery of the Corn meal to the consignee after the assignment without the surrender of the bills of lading.
    This because the forgery, and not the delivery to the consignee, was the proximate cause of the assignee’s damage.
    The fact that the bills of lading did not have the words “non-negotiable” indorsed upon their face, as required by section 638 of the Penal Code in case of . a delivery without the surrender of ..the bills oí1 lading, does-not render the carrier liable, for the damages did not result from that illegal act.
    Scott,. J., dissented, in part.
    Appeal by the defendant, the Baltimore and Ohio Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Aew York on the 5th day of Aprilf 1907, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office.on the 4th day of April, 1907,. denying the defendant’s'motion for a new trial made upon the minutes.
    
      George W. Field, for the appellant.
    
      Howard E. White, for the respondent.
   McLaughlin, J.:

Action to recover damages alleged to have been sustained by reason of the delivery by the defendant to the consignee of a quantity of corn meal'without the surrender of the bills of lading under which the same was shipped. Two causes of action are set out in. the complaint. The first is to the effect that the plaintiff, on the 21st of December, 1896, became the owner of 200 barrels of corn meal of the value of $420, for which a bill of lading had been originally issued to one Day, and by him, for value, indorsed and transferred to the plaintiff, and that thereafter, and before July 1, 1897, the defendant wrongfully and unlawfully converted the same to the plaintiff’s damage of $420. The second is that on December 30, 1896, plaintiff became the owner of 1,100 barrels of corn meai of the value of $2,310, for which bills of lading had been issued originally to Day and by him, 'for value, indorsed and transferred to the plaintiff, and between December 30, 1896, and July 1, 1897, defendant unlawfully converted the same to its own use to plaintiff’s damage in the sum of $2,310. The answer is a general denial, together with certain affirmative defenses — among others, one that the bills of lading referred' to in the complaint were issued as straight and not as “ order ”" bills, and after their issuance they were altered by placing the words order of and notify ” before the name of Day, the consignee; also one that section 633 of the Penal Code, which makes it a crime for a common carrier to deliver merchandise without the surrender or cancellation of the bill of lading, is, in so far as it attempts to regulate interstate commerce, a violation of the Constitution and statutes of the United States.

There is little dispute as to the facts. From December 10 to 15, 1896, the Sagamore Milling Company delivered to the Norfolk and Western Railroad Company at Circleville, Ohio, a quantity of corn meal consigned to one James S. Day of Mew York city, and for which the railroad company issued seven separate non-negotiable bills of lading without the words “ non-negotiable ” written upon their face. The meal was conveyed over the company’s line to its intersection with the defendant railroad, and was then by that company transported to the city of New York. Thereafter the consignee Day indorsed the bills of lading in blank and delivered the same to the plaintiff as collateral security for the payment of a loan then or previously made. At the time of the delivery of these bills to the plaintiff each of them had been altered by the insertion of the words “ order of and notify ” immediately preceding the name of the consignee, thus changing them into negotiable instruments. This change was made without the knowledge or consent of the Norfolk and Western Railroad Company or of the defendant, Each of the bills contained the following provision: “ If the word order? is written hereon immediately before or after the name of the party to whose order the property is consigned, without any condition or limitation' other than the name of a party to be notified of the arrival of the property, the surrender of this bill of lading, properly indorsed, shall be required before the delivery of the property at destination. If any other than the aforesaid form of consignment is used herein the said property may, at the option of the carrier, be delivered without requiring the production or surrender of this, bill of lading.” Originally the words “ Order of and notify ” had been part, of a rubber stamp used by the Norfolk and Western Railroad Company in making shipments to Day, but before the shipments in question were made these words had been cut off the stamp at his request. The shipper understood the terms of the bills of lading and knew that the same were contracts to the effect that the railroad company • might, at its option, deliver the corn to the consignee without requiring their production. Plaintiff had been doing business with Day for some ten or twelve years prior to the transactions in question, and had frequently made loans to him upon bills of lading of the character of those here involved. The method adopted was for Day to bring in the bills of lading with draft attached to the plaintiff who would pay the amount of the draft and take the bills in. exchange ; then when Day disposed Of the corn meal he would pay plaintiff the amount • advanced; at times he would accommodate Day. by allowing him to substitute one bill for another, and when this was done the bills of lading would come into his hands without the draft at some time other than when Day first received them. The bill of lading upon which is predicated the' first cause of action was a substituted bill. Just when this was received by plaintiff does not appear. The others, according to his testimony, were received by him on . the 30tli of December, 1896. The plaintiff ceased doing business with Day in September, 1897, and there then remained due him upwards of $5,000, upon which Day made certain payments, but after such payments he was indebted to the plaintiff on account of the moneys advanced on the bills in question for over $2,000. He did nothing, however, with such bills until some time during the summer of 1898, when he demanded the meal' from the defendant and was then informed that the same had been previously delivered to Day, and he thereupon brought this action to recover the damages alleged to have been sustained by him by reason of such delivery. At the conclusion of the trial the court directed a verdict for the plaintiff for the amount claimed, and from the judgment entered thereon and an order denying á motion for a new trial defendant appeals.

The decision of the Court of Appeals in Mairs v. Baltimore & Ohio R. R. Co. (175 N. Y. 409) seems to me to be decisive of the question presented and necessitates a reversal of the judgment appealed from. There the court had under consideration a bill of lading in all' respects similar to the ones here under consideration and it held that the plaintiff was not entitled to recover. Judge Haight, speaking for the entire court, after referring to the. statute under which it was sought to make the defendant liable (Penal Code, § 633), said : There, however, can be no recovery unless damages to the plaintiff resulted from the illegal act. Where the Legislature prohibits or requires the doing of an act' and prescribes a punishment that shall be inflicted for a violation of its mandate, the punishment furnishes the exclusive remedy for the wrong, so far as the public is concerned, and the act cannot be made the basis of a civil action by an individual for the recovery of damages, unless he has been injured in his person or property and the damages suffered are the direct and proximate result of the illegal act. In this case the defendants negligently omitted to take up the bill of lading when they delivered the goods upon the order of the consignee. The bill of lading did not have the words not negotiable ’ indorsed upon its face and, therefore, the defendants may be technically guilty of a violation of the statute, but the bill of lading in fact was 1 not negotiable,’ and under the law merchant the defendants would not have been required to take up the bill had it not been for the provision of the statute. The . plaintiff, as we have seen, was a member of the Bew York Stock Exchange and had for a number of years dealt with bills of lading and knew the difference between a negotiable and non-negotiable bill. He knew that' the property could be delivered to the consignee without the surrender of a non-negotiable bill, and admits that he carefully scrutinized the bills of lading' brought in by Day, the consignee. It is, therefore, apparent that the plaintiff could not have been induced to part with" any property or make loans upon this bill of lading had it remained in the form in which it was originally executed. He was induced to take it for the reason that it appeared to be negotiable. He was deceived by reason of the forgery and for this the defendants were not responsible. The forgery was not the direct or proximate result of the omission to take up the bill of lading, but was the independent and felonious act of another person. For this reason we think the plaintiff Cannot recover. These views render it unnecessary to consider the question as to whether the provisions of the Penal Code are violative of the interstate commerce clause of the Constitution of the United States.”

It is sought to distinguish that case from the one now before us upon the ground that it there appeared that the meal was delivered to Day before the bill of lading was delivered to the plaintiff, while here, it is claimed the bills of lading were delivered- first. It is true there is this difference between the two cases except as to the first cause of .action set out'in the complaint, and as to that the question presented is precisely like the one which was considered by the Court of Appeals. The record does not show that this bill of lading was delivered to the plaintiff before the meal’ called for by it had actually been delivered to Day. But I do not think this makes any difference. The-basis of the decision of the Court" of Appeals, as I réad the opinion, is that the forgery, and not the deliveries to Day, was the direct and proximate cause of the plaintiff’s damage, ánd for that defendant is not liable. ■

The case of Colgate v. Pennsylvania Co. (102 N. Y. 120) upon which the plaintiff relies, is in no way in conflict with the foregoing views. The recovery in that case is predicated upon the fact that the damages sustained were the direct result of the failure, of the defendant to comply with ■ the statute. The bill of lading, when negotiated, was in precisely the same -form that it was when delivered by the carrier, and obedience to the statute would have prevented thé injury which there happened, while' here the bills Would ■ not have been negotiated had not Day forged the words order of ' and notify ” upon each of them. With the addition of these words the carrier had nothing to do. The act placing them upon the bills was a forgery, and such act alone, and not defendant’s omission to comply with the statute, induced the plaintiff to take 'them.

It follows. that the judgment and order appealed from must be reversed and a new trial ordered, with costs to appellant to ábide event.

Ingraham, Clarke and Houghton, JJ., concurred ; Scott, J., dissented as to second cause of -action.

Judgment and ord$r reversed, new trial ordered, costs to appellant to abide event  