Zambakian v. Werner ( 1907 )

DAYTON, J.

The complaint alleges that defendant was a common carrier, and that plaintiff delivered to John E. Moore Company a bundle in gc. od order and securely wrapped, containing articles worth $355, and received-from said John E. Moore Company a brass check marked, “Immigration Depot L. 338,” a duplicate of which was attached to said bundle, which bundle said company agreed to deliver at Ellis Island to plaintiff’s order on presentation of said check to the defendant, who for a reasonable compensation agreed to transfer and deliver said bundle to the plaintiff at a specified place in the borough of Manhattan; that subsequently defendant received a bundle bearing said duplicate check, but that defendant has failed to deliver any bundle to the plaintiff ; that plaintiff, several days after the delivery of said check, called at defendant’s premises, and found a bundle bearing said duplicate check or. tag, with plaintiff’s address thereon, but that the contents thereof had been depleted. Defendant demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action, which demurrer was sustained, and, the plaintiff having failed to serve an amended complaint, the action was dismissed.

When the defendant took the duplicate check and agreed for a consideration to deliver the bundle at a specified address, he entered into a-contract so to do. That he undertook to carry out his contract is shown by the allegation of plaintiff’s discovery of a bundle on defendant’s premises with the plaintiff’s check attached, on which was written plaintiff’s said address, given to the defendant. Respondent contends that the complaint- is insufficient, in that it fails to allege that the specific articles, for the loss of which this action is brought, were in the bundle when it was received by the defendant. It seems to me that the complaint in paragraph 4 does so allege; for, after setting forth in detail the contents of said bundle, in good order, as delivered to John E. Moore Company, in paragraph 3 the allegation is:

“On June 19, 1906, about 2 p. m., plaintiff delivered said brass check to defendant, and defendant then and there agreed for a reasonable compensation, to be paid to him on delivery of said bundle, to transfer and deliver the same to plaintiff at the address given to defendant.”

Aiken v. Wescott, 123 N. Y. 363, 25 N. E. 503, is readily distinguishable from the case at bar, for the reason that there was no proof that the trunk had ever reached the express company, while here the fact is that plaintiff’s bundle containing some of his property, with his tag or check addressed to its place of destination, was found in defendant’s possession. In Springer v. Westcott, 166 N. Y., at page 122, 59 N. E. 693, the court says:

“So far as the rights of the plaintiff are concerned, the defendant had assumed control of the trunk and was bound to make safe delivery thereof to her. By its action it ran the risk of receiving the trunk, with the contents unharmed, from the railroad company, its bailee.”

This language is applicable here.

The judgment sustaining the demurrer and the judgment dismissing the action should each be reversed and new trial ordered, with costs to appellant to abide the event. All concur.