
    Barker-Bond Lumber Company, Appellant, v. Pennsylvania Railroad Company, Respondent.
    (Supreme Court, Appellate Term,
    November, 1911.)
    Carriers — Carriage of goods — Actions against carriers — Right to maintain trover.
    Demurrage: Actions — Evidence — Presumptions: Computation of time of delay.
    An action for conversion lies, against a carrier refusing to deliver freight unless upon payment of demurrage not due.
    In case of an interstate shipment it will be assumed, in the absence of proof to the contrary, that the rate of demurrage charged by the carrier is in accord with that established by law.
    Where, during the three days which elapsed between the time of the removal of a boat from a dock at its port of destination and its arrival at another dock, neither the shipper nor its consignee knew anything of . the whereabouts of certain lumber-shipped by said boat, the carrier is not entitled to demurrage during said interval.
    Appeal by the plaintiff from a' judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the defendant.
    Hyland & Zabriskie (Nelson Zabriskie, of counsel), for appellant.
    Burlingham, Montgomery & Beecher (George R. Allen, of counsel), for respondent.
   Seabury, J.

This is an action brought to recover damages for the alleged conversion of lumber. The defendant as-carrier refused to deliver the lumber, unless the demurrage which it claimed was due was first paid by the plaintiff’s consignee. The plaintiff and its consignee refused to pay the demurrage claimed, iipon the ground that it was not due.

If the demurrage claimed was not due or was in excess of the amount due and the defendant failed to deliver the lumber, it is liable for the -conversion of the lumber. Monda v. Wells-Fargo & Co., 20 Misc. Rep. 685, affd., 21 id. 308; Laverty v. Snethen, 68 N. Y. 522.

The question of the defendant’s' liability turns, therefore, upon whether or not the demurrage which the defendant claimed was due. In order to determine this question, it is necessary to examine the facts. After the lumber was shipped, the defendant was directed by the plaintiff to deliver it to one Boss at the foot of Bay Bidge avenue, Brooklyn, N. Y. The delivery order which the defendant sent to Boss- when the lumber arrived at Jersey City, N. J., provided that, when a car or float reports at its destination, the shipper, consignee or steamship company must provide a berth and that, after two days (forty-eight hours) from the time the car or float reports, “ demurrage shall accrue ” at the rate per day of twenty-four hours, or a fraction thereof, of ten dollars for lighters or barges. On Tuesday, January 10, 1911, at ten a. m., the lumber arrived at foot of Bay Bidge avenue on board the canal boat Morse. The lumber of the plaintiff was in the bottom of the boat and was covered by other lumber consigned to other consignees. On the afternoon of the day of arrival, Boss took two truck loads of the lumber from the boat. The boat -remained at the foot of Bay Bidge avenue until Thursday, January twelfth, at three p. m., when it left for another place. Between the time when Boss took the two loads of lumber from the boat and the time •of the departure of the' boat, Boss refused to receive the balance of the lumber.’ Why Boss did this is the subject of dispute, but it appears that, before -the boat left the foot of Bay Bidge avenue, Boss returned, the two loads of lumber which he had taken from the boat and gave the defendant a receipt for the whole car of lumber. This receipt was obviously false. The plaintiff, on being notified that Boss refused to accept the lumber, notified the defendant to make delivery of it to the Bay Bidge Lumber Company. When the boat left the foot of Bay Bidge avenue, she went to the foot of Twenty-fifth street, South Brooklyn, where she arrived between four and five p. m. on January thirteenth. Bo report of her arrival at the place was given to the plaintiff or the new consignee. On the morning following, the Bay Bidge Lumber Company sent several teams to the foot of Bay Bidge avenue for the purpose of getting the lumber, but its representatives could learn nothing as to the whereabouts of the lumber, until the morning of January fourteenth, when the Bay Bidge Lumber Company was notified that the boat was at Twenty-fifth street, South Brooklyn, and sent its teams to unload the boat. At this time the defendant demanded demurrage for three days at ten dollars per day and eight dollars for handling the portion of the lumber which Boss had taken off the boat and subsequently returned.

As the shipment was an interstate shipment, it must be assumed, in the absence of any proof to the contrary, that, so far as the rate is concerned, it is in accord with that established by law. Indeed, we do not understand that the appellant disputes this; and the rate charged is not in any way in controversy. The respondent contends that whether or not the lumber was accessible to Boss and whether he was able to unload it were questions of fact merely. It is also claimed that, if Boss could not remove the lumber, it was because of the fact that lumber — not of the defendant, but of other consignees — covered that of the plaintiff. For the purpose of determining this appeal, we may assume that these questions of fact have been properly' determined by the court below in favor of the defendant. Even with this concession it seems clear to us that the demurrage which the defendant claimed was in excess of that justly due.

Without discussing the other features of the case, it seems to us that there is no basis for the defendant’s claim that it was entitled to demurrage for three days. If we assume that the consignee had no valid excuse for not unloading within forty-eight hours after 'the boat docked at the foot of Bay Bidge avenue, the defendant was not entitled to- demurrage for the period intervening between the time when the boat left Bay Bidge avenue and the time when she arrived at Twenty-fifth street, South Brooklyn. During this period,neither the plaintiff nor its consignee knew anything about the whereabouts of the -lumber. During this interval, at least, it is clear that the defendant cannot sustain its claim for demurrage on the ground that the delay in unloading was due to Boss, or the Bay Bidge Lumber Company, or to any other consignee of other lumber upon the same boat. The removal of the boat from the dock on January thirteenth, and the failure of the defendant to notify, the plaintiff or its consignee until nine a. m. on January fourteenth, suspended the defendant’s right to demurrage during this interval. Gabler v. McChesney, Action No. 1, 60 App. Div. 583, 589. Yet, unless the defendant is permitted to claim demurrage for this intervening period, its claim to thirty dollars demurrage is untenable. It follows that the defendant had no lien for this sum, and its refusal to deliver the lumber unless the whole of this sum was paid constituted a conversion of the lumber for which it must respond to the plaintiff in damages.

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

Guy and Cohalan, JJ., concur.

Judgment reversed.  