Valentine v. Long Island R. Co.

• Decision Date: 08 January 1907
• Parties: VALENTINE v. LONG ISLAND R. CO.
• Court: New York Court of Appeals Court of Appeals

187 N.Y. 121

79 N.E. 849

VALENTINE

v.LONG ISLAND R. CO.

Court of Appeals of New York.

Jan. 8, 1907.

Appeal from Superior Court, Appellate Division, Second Department.

Action by Benjamin E. Valentine against the Long Island Railroad Company. From an order of the Appellate Division (92 N. Y. S. 645, 102 App. Div. 419), reversing a judgment on a verdict in favor of defendant directed by the court, and granting a new trial, defendant appeals. Order of Appellate Division reversed, and judgment of trial court affirmed.

Joseph F. Keany and James W. Treadwell, for appellant.

B. E. Valentine, pro se.

HAIGHT, J.

This action was brought to recover the value of about 120 tons of iron rails, fish plates, bolts, spikes, etc., of which the plaintiff claimed to be the owner and which he alleged had been converted by the defendant. The evidence tended to show that in the latter part of the year 1899 the plaintiff applied to the station agent of the defendant at Woodsburg, near Cedarhurst, for cars and rate for shipping rails from that station to New York. The agent was unable to give the desired information, but subsequently obtained the rate and cars from a superior officer, and a few days thereafter the plaintiff loaded the cars and they were started for their place of destination. It is undisputed that the rails were never transported to New York or delivered to the plaintiff or his consignee, but the evidence is to the effect that the defendant subsequently ascertained that the rails belonged to it and, therefore they were side tracked at Jamaica, and the delivery to the plaintiff was refused. It further appears that the Ocean Point Company was the owner of an unimproved tract of land, and that, for the purpose of developing the property, the Rockaway Steeplechase Association was organized to operate a race course upon the grounds of the company, and that to facilitate its use as a race course a railroad was projected from Woodsburg Station on the Long Island railroad to the grounds of the association; that one Cheever, a large owner of the stock of the company, procured the right of way from the owners of land over which the proposed road was to be constructed, and then an agreement was entered into between the association and the defendant to the effect that the defendant was to loan the rails and ties necessary for the construction of the railroad to the association grounds and that the association was to pay for putting them down, the rails to remain the property of the defendant, and when they ceased to be used for railroad purposes the defendant could remove them at will. This agreement was carried out and the defendant occupied the railroad by running its cars over the same to the race track of the association during the spring, summer, and fall meetings of the association until 1888, when the association's buildings were destroyed by fire, since which the premises have not been used as a race course. There is some evidence tending to show that thereafter the road was used for a time for the running of horse cars, but that after a time this was abandoned and the switch at the station on the main line of the defendant company was taken up. Thereupon the plaintiff, who, in the meantime, had procured a quitclaim deed from Cheever of the right of way and had acquired most of the stock of the Cedarhurst Company which had succeeded to the title of the lands of the association, applied to the defendant company to reinstate the switch at Woodsburg Station so that freight consigned to the plaintiff could be run over the tracks to his premises. This, at first, was objected to on the ground that the bridge over the creek was not of sufficient strength to sustain the weight of the engine, but, upon the offer of the plaintiff to draw the cars by horses from the main line over this railroad, the defendant consented to restore the switch and did so, but shortly thereafter the representatives of the Wood estate, across whose premises the rails were laid, tore them up, thus preventing the use of the road for railroad purposes. This was in 1895. Subsequently, the tracks were taken up by the plaintiff, and the rails shipped by the defendant to New York, as before stated.

At the conclusion of the evidence the defendant moved for a direction of a verdict in its favor. The plaintiff objected and asked to go to the jury upon the following questions: ‘(1) As to whether there was an agreement on the part of the plaintiff's grantor that the defendant might remove said rails when the use of the railroad was discontinued. (2) Whether or not, it appearing the use of said road was discontinued from 1888 to 1900, a period of 12 years, the defendant had abandoned said rails. (3) On the question of the value of that portion of the shipment of said rails which the plaintiff had had at his own private residence for seven years.’ Each of these requests was refused and exceptions were taken by the plaintiff. The court then directed a verdict in favor of the defendant.

As to the first request, the evidence as to the agreement under which the rails were loaned by the defendant company to the association was by a former officer of the association, a disinterested person, and it is not controverted. As to the second and third requests, as we understand the plaintiff's testimony, the rails were upon the roadbed intact as late as 1895 when the plaintiff procured the switch at the Woodsburg Station to be reinstated so that he could draw freight cars over the same. No act of abandonment is shown...