
    Joseph Feiber, App’lt, v. Manhattan District Telegraph Co., Resp’t.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed April 1, 1889.)
    
    .New trial—Failure to offer proof.
    When plaintiff refrained from offering proof of the damages he had sustained, because he thought that on a question of law he was almost certain to succeed, Held, that a new trial was properly refused.
    This is an appeal from a judgment rendered by Judge Alfred Steckler, of the tenth district court, in favor of the defendants. The action was brought to recover the sum of $40, upon the following facts. The defendant had established in addition to its regular = business of sending messages by telegraph, a system of providing boys for their patrons to let as messengers. Jacobs Bros., a firm engaged in the tailoring business, was one of defendant’s subscribers, and in the afternoon of the 2d day of June, 1887, rang for a messenger boy. In response to the call a boy was sent who received from Jacobs Bros, a bundle containing certain clothes, and was instructed to take them to Mr. W. F. Duckworth, at 301 Fulton street, Brooklyn, and to get the money from him for them or bring back the clothes.
    The same morning Mr. Duckworth had called upon Jacobs Bros, and tried on the clothes he nod ordered from them and found that some did not fit him and they had promised to remedy the defects and send the clothes to him that day. The boy took the clothes to Mr. Duckworth and delivered his message. Mr. Duckworth kept such- of the ■articles as suited him and tied the others up in a bundle .and handed them back to the boy, together with a sealed •envelope, telling the boy to take them back to Jacobs Bros. , and that the letter would explain everything. The letter explained that the articles returned had not been made to fit as promised, so he returned them together with a check for twenty dollars for the articles retained by him, Jacobs Bros, having .already received from him a deposit of ten dollars. The messenger boy returned with the letter and bundle to Jacobs Bros., and they refused to receive either the check or the goods.
    The clothes, it would appear, were afterwards sent back to Jacobs Brothers and the check held for a certain time by. the defendant, pursuant to notice to Jacobs Brothers, and then returned to Mr. Duckworth.
    Jacobs Brothers assigned their claim to the plaintiff and seek to charge the defendant with the purchase-price of the-clothing and to collect from it for misfit clothing by endeavoring to hold it to the strict technical liability of a common carrier.
    The learned justice before whom the case was tried found, that the defendant was not a common carrier, and even if it were such, the employment was under a special contract made between the boy and Jacobs Brothers, and that the boy had no authority from the defendant to make any such contract. And that Jacobs Brothers, having agreed to pay for the regular charge for messenger service when signalled, not having paid it, could not recover.
    
      C. L. Cohn, for app’lt; Vanderpool, Cuming & Goodwin,. for resp’t.
    
      
       See former appeal, 20 N. Y. State Rep., 95
    
   Per Curiam

The brief of the defendant, used on the' first argument of the appeal, disposes of the suggestion that the question of damages was not before the court. Even if the plaintiff were misled by the statement of Justice Steckler that, in his view, the controlling question in the case, was: Is or is not the defendant a common carrier, we should not feel called on to reverse the judgment. Notwithstanding the expression of an opinion by the justice, it was in the power of the plaintiff to offer proof of the damages he had sustained, and if he refrained from offering such proof because he thought that on the question of law he was almost certain to succeed, he has no right to ask that his error of judgment shall entail the consequences of a second trial upon the defendant.

We are satisfied that the judgment of affirmance is correct. The plaintiff has his action against Duckworth, and he is the party with whom the matters in controversy ought, to be litigated. By suing the defendant, the plaintiff may evade the real merits of the controversy, and escape the-trial of- the question. Did the clothes fit Duckworth reasonably well or not? The plaintiff is now attempting to make the defendant liable to pay for the clothes even though they were utterly unfit to be worn, and though Duckworth had a lawful right to refuse to accept them; and this, because a helpless boy did not force Duckworth to pay for-the clothes that were returned on the ground they did not fit.

The motion for a re-argument is denied, with costs.  