
    Joseph Wien, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    April, 1914.)
    Carriers — of goods — action for damages by consignor—direction by consignor to return goods at once — dealing with connecting carrier does not relieve initial carrier from legal liability.
    The consignor of goods four months after delivery to defendant, as initial carrier, upon learning for the first time of their nondelivery to the consignee, complained to defendant, and later the connecting carrier correcting its prior advices that the goods had been delivered admitted that they were still in its possession. The consignor directed the defendant to return them at once, but they were not returned until several months later and were then sold at one-half their original value. Held, that the dismissal of the complaint in the consignor’s action for damages, on the theory that plaintiff by dealing with a connecting carrier had relieved defendant from legal liability as initial carrier, was reversible error.
    
      A contention that plaintiff should have accepted the consignee’s offer to take the goods at two-thirds of their value rather than to have had them returned did not warrant the dismissal of the complaint, as plaintiff was not bound at his own risk to adopt one of two possible means of reducing his damage.
    Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, dismissing the complaint at the close of the evidence.
    A. M. Becker (Joseph Levy, of counsel), for appellant.
    Alexander S. Lyman (William Mann, of counsel), for respondent.
   Bijur, J.

The testimony shows that plaintiff made a shipment of goods to defendant as initial carrier from New York to Kansas City about January, 1912. At the end of April plaintiff learned for the first time that the goods had not been delivered to the consignee. He complained to defendant’s agent, and, on inquiry being made, was informed by the connecting carrier, the' Atchison, Topeka and Santa Fé Railroad Company, that the goods had been delivered. About a month later the Santa Fé road corrected its prior advices and admitted that the goods had not been delivered and were still in its possession. Plaintiff directed defendant to have them returned at once, but, on the suggestion of defendant’s agent, took the matter up direct with the New York representative of the Santa Fé road. Various negotiations and delays ensued with the result that the goods were not returned until July, when they were sold here at half their original value.

The learned court below dismissed the complaint on the theory that by plaintiff’s dealing with the Santa Fé road, after being referred to it by defendant, he had relieved the defendant from legal liability as initial carrier. In this conclusion-1 cannot agree. The negligence from which plaintiff suffered was negligence of the Santa Fé road acting as connecting carrier of the shipment delivered by plaintiff to defendant. The mere fact that plaintiff, at the suggestion of the defendant, for their mutual convenience, transacted part of the business of salvage through the connecting carrier, does not relieve the defendant on any principle of law with which I am familiar, nor is any cited in support thereof.

An incidental claim by the defendant that plaintiff at all events should have accepted the offer of the consignee to take the goods at two-thirds of their value rather than have them returned here where they were sold for one-half of their value certainly does not warrant the dismissal of the complaint. At most it might be applied in-reduction of the recovery; but even in this connection defendant fails to appeal to any authority, nor do I know of any which charges the plaintiff at his risk with adopting one of two possible means for reducing the damage.

Seabury and Lehman, JJ., concur.

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