Dworkwitz v. New York Cent. R. Co.

• Decision Date: 31 December 1920
• Citation: 129 N.E. 650,230 N.Y. 188
• Parties: DWORKWITZ v. NEW YORK CENT. R. CO.
• Court: New York Court of Appeals Court of Appeals

230 N.Y. 188

129 N.E. 650

DWORKWITZ

v.NEW YORK CENT. R. CO.

Court of Appeals of New York.

Dec. 31, 1920.

Action by Abraham Dworkwitz against the New York Central Railroad Company. From judgment of the Appellate Division (187 App. Div. 906,173 N. Y. Supp. 654) affirming judgment of the Trial Term entered upon verdict, defendant appeals.

Judgment reversed, and new trial granted.

Appeal from Supreme Court, Appellate Division, Third Department.

Sherman A. Murphy, of Albany, for appellant.

Frank Cooper, of Schenectady, for respondent.

HISCOCK, C. J.

In this action the plaintiff has been allowed to recover a judgment against defendant because of its failure properly to carry and deliver goods alleged to have been received by it, from him at Schenectady, consigned to the I. S. Knee Pants Company, 35-7 West Third street, New York City. To speak somewhat paradoxically there seems to be an abundant lack of evidence necessary to establish plaintiff's claim, and the judgment should not have been allowed.

As supplying evidence of the delivery by him to defendant for carriage of the goods for which recovery has been had, the plaintiff goes back to and relies upon a bill of lading delivered by defendant to the pants company in New York City for a package consigned to plaintiff at Schenectady, and the question whether this bill of lading does contain such an admission of receipt of the goods here sued for as is necessary to establish plaintiff's case is the important one before us. The facts involved in the action and disclosing the importance of this bill of lading may be briefly stated.

Plaintiff, at Schenectady, ordered of the Knee Pants Company at New York some goods supposed to be the same ones for which he has now recovered judgment against the defendant. Subsequently said company delivered to defendant at New York, consigned to plaintiffat Schenectady, a certain package. There is not a word of evidence outside of the bill of lading to show what was contained in that package. The bill of lading, in addition to other statements immaterial here, recited that defendant had received consigned to plaintiff ‘the property described in apparent good order except as noted (contents and condition of contents of packages unknown). * * * Description of articles * * * one case clo. (clothes).’ The description of the package was in writing and the balance was part of a printed form. In due time this package arrived at Schenectady, and the truckman accustomed to do his business took it from defendant's freight office to plaintiff's store. The plaintiff, without receiving the package and without opening or examining its contents, directed the truckman to take it back to defendant's office and reship it to the original consignor. It was thus taken back and delivered to some one whose identity is not made very certain, the plaintiff's address erased from the package and in place thereof placed an address to the ‘Kneehigh Pants Company’ at New York, without other designation or street number. The original consignor, the I. S. Knee Pants Company, never having received return of the goods or pay therefor, subsequently brought an action and recovered judgment against plaintiff for the alleged value of its consignment, and subsequently plaintiff brought this action.

We have some doubts about the sufficiency of plaintiff's evidence before we reach the more important question to which reference has been made.

[1] The recovery has been allowed for certain goods, presumably knee pants, of a fixed value. It cannot be sustained without evidence that defendant received the specific goods for which judgment has been recovered. Disregarding for the moment the clause in the bill of lading that the contents and condition of contents of the package originally delivered to defendant were unknown and accepting the bill of lading as an unqualified admission that defendant had received ‘one case col. (clothes),’ it would not seem to me that this amounted to an admission that there had been received a certain number of knee pants of certain value and for which on nondelivery recovery could be had.

[2] But if we disregard this question, we then come to the remaining and decisive one whether the bill of lading issued by defendant in New York and upon which proof of plaintiff's case rests, as already explained, amounted to an admission of the receipt by defendant of any...