In re New York House Furnishing Goods Co.

• Citation: 169 F. 612
• Decision Date: 13 April 1909
• Docket Number: 216.
• Parties: In re NEW YORK HOUSE FURNISHING GOODS CO.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

169 F. 612

In re NEW YORK HOUSE FURNISHING GOODS CO.

No. 216.

United States Court of Appeals, Second Circuit.

April 13, 1909

H. W Newburger (George Edwin Joseph and Herbert H. Harris, of counsel), for appellant.

Fuller & Reuman, for appellee.

Before LACOMBE, COXE, and WARD, Circuit Judges.

LACOMBE Circuit Judge.

The proceeds in question represent 100 refrigerators which the bankrupt had ordered from the Home Company two months and more before petition was filed; the price was agreed upon f.o.b. cars and instructions given to ship by rail to New York. The goods were on February 13, 1908, delivered to the Chicago, Milwaukee & St. Paul Railway, which issued bill of lading giving the consignee's name and address 'New York City, N.Y.,' and guaranteeing that the freight should not exceed rates specified therein.

The freight was not prepaid. They arrived at the Thirty-third Street freight station of the New York Central & Hudson River Railroad on March 12th. Notice was immediately given by the carrier to the consignee of their arrival, with a request to remove them. The consignee did not remove them, nor make any attempt so to do. A few days later a deputy sheriff, under an execution issued upon a judgment against the house furnishing goods company, called at the freight station and served a notice upon the person in charge that he had levied upon the refrigerators then standing in the cars. On March 18th petition in bankruptcy was filed and receiver appointed. On March 25th the Home Company notified the general freight agent of the New York Central & Hudson River Railroad Company to hold the refrigerators until arrangements could be made relative to their disposal. Arrangements were subsequently made between it and the receiver whereby the freight was paid and the goods removed and sold and the proceeds placed in the hands of the receiver subject to the order of the court.

The only question in the case is whether the right of stoppage in transitu continued in existence when the vendor reclaimed the goods. The general rule of law is well stated in Hutchinson on Carriers, Secs. 415, 417:

'In the case of railroad companies transporting goods as common carriers, the transitus will not be considered as having come to an end, as soon as the goods have arrived at destination and have been stored, whether such carriers be required to give notice to the consignee or not, or whether their liability be held to cease as carriers upon the arrival and warehousing of the goods, without more, or not. As long as the goods are in their custody, whether as carriers or warehousemen, they must recognize the right of the vendor to stop delivery. * * * An actual or constructive delivery of the goods to the consignee will defeat the right. * * * It is not necessary that the goods should have come into the actual possession of the buyer to put an end to the right of the vendor. * * * If the consignee, for his own convenience,

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