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Hirsch v. New England Nav. Co.

Supreme Court of New York, Appellate Division

December 11, 1908

HIRSCH et al.
v.
NEW ENGLAND NAVIGATION CO. et al.

[113 N.Y.S. 396] Tipple & Plitt, for appellants.

Henry C. Hunter, for respondents Ferguson.

Argued before PATTERSON, P. J., and INGRAHAM, McLAUGHLIN, CLARKE, and HOUGHTON, JJ.

CLARKE, J.

The complaint alleges that the New England Navigation Company, one of the defendants, was a foreign corporation engaged in the carrying and transporting of goods as a common carrier for hire, and operating the Bridgeport, New Haven, Norwich, and Providence Lines, and the Fall River & New Bedford Line; that the defendants Ferguson were copartners engaged in the trucking and express business, and the carrying and transporting of goods, wares, and merchandise for hire, in and about the borough of Manhattan, city and state of New York, as a common carrier for hire; that the plaintiffs, in the borough of Manhattan, delivered to defendants above named one case of goods, consigned to Jordan Marsh Company, Boston, Mass., which said defendants accepted as such common carriers for the purpose of carrying and delivering to said consignee for and in consideration of a reasonable reward to be paid therefor; that said defendants have wholly failed and omitted to deliver the said case of goods to said consignee; that by reason of said defendants' default and omission said consignee has sustained damages in the sum of $558.60; that said consignee, for valuable consideration, duly assigned all its right, title, and interest in and to the claim upon which this action is founded to the plaintiffs.

Defendants Ferguson demurred, first, on the ground that the complaint did not state facts sufficient to constitute a cause of action against them; second, that it appeared upon the face of said complaint that causes of action had been improperly united therein, because the complaint alleges that these defendants were engaged in the trucking and express business, and the carrying and transportation of goods, wares, and merchandise, in and about the borough of Manhattan, city and state of New York, as a common carrier for hire, and that, assuming the truth of the other allegations of the complaint, a cause of action against the defendant the New England Navigation Company is disclosed, which excludes the possibility of the joinder therewith and the existence of any cause of action against F. S. Ferguson & Son.

From the terms of this complaint it is evident that this transaction upon which plaintiffs base their claim is this: That, having a case of goods to send to their consignee in Boston, they delivered it to the defendants Ferguson, truckmen in the city of New York, to convey from their store to the wharf of the New England Navigation Company in the city of New York, which company was to convey it to Boston and deliver to the Jordan Marsh Company, that the goods were not [113 N.Y.S. 397] delivered, and that plaintiffs have endeavored, by joining the truckmen and the Navigation Company as defendants, to determine who was responsible for the failure to deliver, and to charge the defendant so responsible with the damages occasioned. If the goods were lost while in the custody of the Fergusons, a good cause of action is stated against them; for it is alleged that the goods were delivered to them, consigned to Jordan Marsh Company, and they accepted the same for the purpose of carrying and delivering them to said consignee for and in consideration of a reasonable reward to be paid therefor. If the goods were lost while in the custody of the New England Navigation Company, a good cause of action is stated against that company; for the allegation of delivery to it could be sustained by the proof that the truckmen, as agents of the plaintiffs, delivered the goods to the Navigation Company. I think it appears, therefore, that two distinct causes of action are set up in the complaint--one against the truckmen, and the other against the Navigation Company. I do not think that they can be properly united in one action, because neither defendant would be responsible for a loss caused while the goods were in the custody of the other.

The appellants invoke in their aid the provisions of section 20 of the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 386 [U. S. Comp. St. 1901, p. 3169]), as amended by act June 29, 1906, c. 3591, 34 Stat. 595 (U. S. Comp. St. Supp. 1907, p. 909), providing that:

" Any common carrier, railroad or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass."

But the first section of said act provides that:

" The provisions of this act shall apply * * * to any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad (or partly by railroad and partly by water when both are used under a common control, management or arrangement for a continuous carriage or shipment), from one state or territory of the United States, or the District of Columbia, to any other state or territory of the United States or the District of Columbia. * * *"

It cannot be that the provisions of the interstate commerce act affect a truckman in a city and hold him responsible for goods lost anywhere in the United States, upon the theory that he was the initial carrier, when all he had to do was to cart the goods from the store to the dock or the depot as an independent employment.

The interlocutory judgment appealed from should therefore be affirmed, with costs to the respondents, with leave, however, to the appellants, upon payment thereof and within 20 days after service of notice of entry of judgment herein, to serve an amended complaint.

PATTERSON, P. J., and INGRAHAM and ...


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