
    Oscar Compton, Resp’t, v. John D. Heissenbuttel et al., App’lts.
    
      (City Court of New York, General Term,
    
    
      Filed October 24, 1892.)
    
    1. Contbact—Breach—Damages.
    Under a contract of affreightment defendants agreed to pay a certain amount for freight and to pay the wharf owner or lessee all wharfage at place of consignment. Held, that for a breach in failing to pay wharfage charges, plaintiff could recover the amount paid to regain possession of the vessel when seized in proceedings brought by the wharfinger, and the damages suffered by its detention. ,
    3. Same—Limitation.
    Plaintiff’s cause of action did not arise until he paid the wharfage and other expenses to regain possession of the boat and the statute did not begin to run until that time.
    Appeal from judgment entered upon a verdict for plaintiff. Action to recover the amount paid by plaintiff to release his canal boat from proceedings in rem brought against it by a wharfinger for nonpayment of wharfage, and damages for its detention by such proceedings. The facts fully appear in the former report of the case in 88 St Rep., 458.
    
      Hyland & Zabriskie, for resp’t; Putney, Bishop & Slade, for app’lts.
   Van Wyck, J.

Upon the affirmance of the judgment entered on the verdict returned at the first trial of this action' this court said, “By their express agreementsto pay all wharfage the defendí ants assumed, so far as the plaintiff is concerned, a primary obligation, to which the liability of the plaintiff or his boat is secondary, and although as to the wharfinger the boat itself can be held liable,” still as between plaintiff and defendants the former is liable as surety and the latter as principal. See 13 N. Y. Supp., 594, and 38 St. Rep., 458. And our appellate authority, in deciding the appeal from this judgment of affirmance, said, “ Defendants insist that the amount of wharfage was payable from them to the plaintiff, and plaintiff contends that it was payable from defendants to the wharf owner. Had the defendants’ engagement been to pay the amount of wharfage to the wharf owner, thus satisfying the latter’s lien upon the boat, then the non-performance of that engagement would have imposed upon the defendants a liability towards the plaintiff to recompense him for the loss of the use of his boat while it was necessarily in the custody of the United States marshal under his seizure in the wharf owner’s proceedings for the enforcement of his lien, together with the costs of such proceedings, and the amount of wharfage necessarily paid by plaintiff to enable him to recover possession of his boat. Such, howqver, was not the defendants’. agreement, as will appear by reference to the complaint and the testimony.” See 41 St. Rep., 846, and 16 N. Y. Supp., 524. The original complaint alleged that “ defendants agreed to pay to plaintiff as freight eighteen cents per ton alongside and all wharf-, age at the place of consignment,” and this was not a direct allegation that defendants agreed to pay to the wharfinger all wharf-age at place of consignment, and the testimony read in connection with this allegation may not have shown an express agreement to pay the wharfinger all wharfage, for which . plaintiff’s boat could certainly have been held liable, and this court should, upon the former hearing of appeal, have amended the complaint so as to conform to the proof; hence our appellate authority properly reversed the judgment and ordered a new trial.

The plaintiff, in obedience to this decision upon the former final appeal herein, moved at special term of this court, before the new trial was had, and was permitted, upon payment of fifty dollars costs, to amend his complaint so as to allege “ that defendants agreed to pay to the wharf owner or lessee of the dock all wharf-age at place of consignment; ” and upon such new trial, under this amended complaint and the answer to the same, much evidence was given by both parties, the one to prove the truth of this new or amended allegation, and the other to disprove the same, and this disputed question of fact thus raised and contested was by the trial judge fairly and clearly submitted to the jury, and especially so in charging the following request of defendants’ counsel: “I ask the court to charge that the jury cannot find a verdict against the defendants for a larger sum than ten dollars, unless they find that there was an express contract on the part of the defendants to pay wharfage to the wharfinger at the port of destination.” The jury found with the plaintiff upon this and the other disputed questions of fact and the verdict is not against the weight of evidence, and it would seem that this verdict, upon the new trial on the new evidence given under the amended complaint and the answer thereto, is a complete answer to the objections successfully made by the defendants on the hearing of the first final appeal herein.

Now as to defendant’s plea of the statute of limitation in bar of the action ; if this court and its appellate authority have rightly comprehended the nature of defendants’ liability and the consequent measure of damages, then it follows that plaintiff’s cause of action did not arise until he had paid the wharfage and the necessary expenses of the seizure of his boat in order to regain possession thereof, and all of this he did within six years of the commencement of his action.

The judgment appealed from is affirmed, with costs.

Ehrlich, Ch. J., and McCarthy, J., concur.  