
    The Greenwich Warehouse Co., Appellant, v. Charles E. Maxfield, Respondent.
    (New York Common Pleas—General Term,
    May, 1894.)
    A warehouseman who takes fruit for storage under an agreement to keep it at a specified temperature, hut allows the temperature to fall so that the fruit becomes frozen and ruined, cannot recover for such storage, ■hut is liable for the damage thereby sustained.
    Appeal from judgment of the District Court of the city of New York for the first judicial district in favor of the defendant.
    
      Sullivan & Cromwell, for-appellant.
    
      Abner C. Thomas, for respondent.
   Bookstaver, J.

This action was brought by plaintiff to recover $219.05 storage charges for storing defendant’s fruit, consisting of mandarins and tangerines. Defendant counterclaimed, alleging that the fruit was damaged and rendered worthless by being improperly stored, and judgment was given in his favor for $260 damages and costs. The return does not show that any exceptions were taken by either party upon the trial of this action. But appellant contends that, notwithstanding this, the judgment should be reversed on two grounds: First, that the evidence shows that the defendant knew the temperature at which the room in the storehouse where his goods were placed was kept, and that it was placed there with his knowledge and consent, and that the plaintiff was not liable for any damages resulting from the freezing; also, that it was a very cold day when the fruit was brought to the storehouse, and that it received the injury complained of during transit from the steamer to the storehouse. The testimony on behalf of the defendant, however, we think, clearly warranted the justice in finding as he did, that the fruit was to be taken and stored at a temperature ranging from thirty-five' to forty, and by failing to do this, but placing it in a temperature which caused the fruit to freeze and thus ruining it, the appellant failed to perform its contract and consequently failed to earn any storage whatever. On the other hand, if the appellant failed to keep its contract with the respondent of safely storing and keeping the fruit, it would be liable to respondent for the damages which the latter sustained by reason of that breach, and consequently the court below had the right to render judgment in favor of the respondent for the amount of that damage up to the extent of his jurisdiction.

The judgment should, therefore, be affirmed, with costs.

Bischoff and Pryor, JJ., concur.

Judgment affirmed, with costs.  