
    Jean, Garrison & Co., Respondent, v. Francis F. Flagg, as Treasurer of the Merchants Despatch Transportation Co., Appellant.
    (Supreme Court, Appellate Term,
    November, 1904.)
    Carrier’s receipt for goods construed — Proof necessary to establish negligence of carrier.
    A bill of lading, which states that the goods were received by the carrier “ in apparent good order * * * contents and condition of contents of package unknown ”, is no acknowledgment by the carrier that the goods were received in good condition.
    To charge a carrier with negligence it is necessary to show the condition of the goods at place of shipment. Mere proof of delivery by carrier in an injured condition is not enough.
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, first district, borough of Manhattan, in favor of the plaintiff, in an action to recover damages for negligence in transporting poultry and eggs.
    
      G. H. & F. L. Crawford (J. W. Goodwin, of counsel), for appellant.
    Dudley R. Horton, for respondent.,
   Fitzgerald, J.

The bill of lading given by carrier to shipper, recites that the goods when received at East St. Louis by the carrier were “ in apparent good order, except as noted, contents and condition of contents of packages unknown.” This was no more than a statement that the packages apparently were in good order,, and when taken in connection with the express disavowal of any knowledge of the contents or its condition, cannot be held to mean more than that the external appearance of the packages when shipped was good. It would be unreasonable to hold that an acknowledgment of the good condition of the merchandise was to be presumed from the mere delivery of a bill of lading containing such expressions. Miller v. Hannibal & St. Jo. R. R. Co., 90 N. Y. 430; Roth v. Hamburg-American Packet Co., 59 N. Y. Super. Ct. 51.

The burden was upon the plaintiff to prove negligence, and as a first step in that direction it was essential to have shown the condition of the goods at the place of shipment. The fact of delivery of goods by a carrier to the consignee at the destination in an injured condition is not enough. “ It must be shown in what condition the carrier received them, in order to prove an injury in his hands.” Smith v. N. Y. C. R. R. Co., 43 Barb. 225.

As there was no evidence offered upon this subject, we are of opinion that plaintiff failed to make out a case, and having arrived at that conclusion, it is unnecessary to discuss the other points raised.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

Freedman, P. J., and Bischoff, J., concur.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.  