
    David Simpson, Pl’ff, v. New York, New Haven and Hartford Railroad Company, Def't.
    
      (Supreme Court, New York Trial Term,
    
    
      Filed April 3, 1896.)
    
    1. Carbiebs—Liability.
    Where a trunk is accepted without charge, simply as passenger’s baggage, or as containing goods for personal use on. a particular journey, the carrier is not liable for merchandise intended for sale, or even for samples-to effect sales, without notice to the company by the passenger that the trunk contains merchandise for samples.
    2. Damage—Loss of baggage.
    In an action against a company for the loss of baggage, plaintiff is entitled to recover its value for use to him, and not the market value.
    Action to recover- for the loss of a trunk delivered by plaintiff to defendant to be transported as his personal baggage.
    
      Kantrowitz & Esberg, for pl’ff; H. W. Taft, for def’t.
   McADAM, J.

The plaintiff, on November 22, 1892, became a passenger on defendant’s cars for a business trip from New York to Hartford. The defendant took charge of his trunk, and, although often demanded, it has never been delivered to the plaintiff.

Whether the action be regarded as in tort or on contract (Catlin v. Adirondack Co., 11 Abb. N. C. 377), the defendant’s liability for the loss has been legally established. Zinn v. Steamboat Co., 49 N. Y. 442; Canfield v. Railroad Co., 93 id. 532; Curtis v. Railroad Co., 74 id. 116; Fairfax v. Railroad Co., 67 id. 11; 73 id. 167; Matteson v. Railroad Co., 76 id. 381; Stewart v. Stone, 127 id. 500; 40 St. Rep. 314. The extent of the liability will next be considered. The trunk contained personal baggage; also, merchandise valued at $1,249, consisting of silk mufflers and handkerchiefs, such as the plaintiff was then selling in his business as a dealer in such goods. If the trunk had been accepted as freight, the defendant would have collected charges commensurate with the care required and the risk assumed; but it was accepted without charge, simply as passenger’s baggage, or as -containing goods intended for personal use on that particular journey. In such case the carrier is not liable for merchandise intended for sale, or even for samples to effect sales. Hutch. Carr. § 685. The plaintiff undertook to avoid this feature of the ■defense, and bring himself within Stoneman v. Railroad Co., 52 N. Y. 429; Perley v. Railroad Co., 65 id. 374; Sloman v. Railroad Co., 67 id. 208; and Glovinsky v. Steamship Co., 4 Misc. Rep. 266; 53 St. Rep. 528, by testifying that he told the baggage-man the trunk contained merchandise. The usual demand for compensation did not follow, nor was any suggestion made as to paying freight or extra charges. and the testimony as to notice is altogether too vague and unsatisfactory to warrant an affirmative finding thereon in plaintiff’s favor. See Talcott v. Wabash Railroad Co., 50 St. Rep. 423.

The plaintiff is, nevertheless, entitled to recover for the loss of his personal baggage, which had not been long in use, and cost $54.50. The legal measure of compensation as to the articles lost is what they were worth for use by the plaintiff, not the market value. Fairfax v. Railroad Co., 73 N. Y., at page 172. The original cost may be considered after allowing a reasonable sum for age and depreciation. Jones v. Morgan, 90 N. Y., at page 11; Bird v. Everard, 4 Misc. Rep., at page 106, 53 St. Rep. 210.

It was suggested, at the close of the trial, that the plaintiff, in his pleading, itemized his loss, placing a separate value on each article of about so much, making an aggregate of about $43, and that the recovery should not exceed that sum, especially as the defendant had made an offer of judgment founded upon the items and values so enumerated ; the contention being that it would be prejudiced by a disregard of the plaintiff’s allegations, which were relied upon as controlling against him. 1 Bigelow, Estop. (4th Ed.) 687; Fay v. Muhlker, 1 Misc. Rep., at page 323; 48 St. Rep. 699. “About” means nearly, approximately, almost. , Cent. Diet. The itemized sums fixed by the plaintiff in his verified complaint as the values at the time of the wrong are consistent with the-original cost prices, with his estimate of deterioration by age and' use deducted; and in this manner the plaintiff must, upon every just principle, he held to have concluded himself as to the actual-loss sustained. The figures will harmonize in no other way. Interest may be added to give a full compensation (Mairs v. Association, 89 N. Y. 507; Reiss v. N. Y. Steam Co., 35 St. Rep. 86), and this, with the value, makes $50.74, the damages recoverable,, for which sum the plaintiff is entitled to judgment.  