Ullmann v. Southern Railway Co. , 93 N.Y.S. 480 ( 1905 )

Greenbaum, J.

The plaintiffs’ demurrer attacks the sufficiency of the alleged second defense, which seeks to defeat plaintiffs’ recovery upon the ground that an alleged misdelivery of a case of goods entrusted to the defendant as a common carrier was due to the plaintiffs’ negligence.

The defense alleges that a case of goods received by it from the Old Dominion Steamship Company upon a bill of lading issued to the plaintiffs was duly transported by it to the city of its destination, that due notice of its arrival was given to one M. Hirsh, the person directed to be notified in the bill of lading; that no demand for delivery having been made, the case was placed in storage. Defendant further alleged that at the same time there Avere two other cases in its storehouse marked in the same manner as the case referred to in the .complaint, and that when the said Hirsh subsequently presented a bill of lading for two cases the defendant, “ Avithout any negligence on its part,” delivered to him two of the said three cases, and that subsequently, pursuant to a notice from the Old Dominion Steamship Company, returned the third case to that company.

The defense closes' with a conclusion of the pleader, . “ That the misdelivery, if any, was due to the negligence of the plaintiffs in failing to properly mark each of the said three cases, so that they could be identified.”

The difficulty with the defense attempted to be pleaded, is, that it does not allege that plaintiffs consigned the two other eases transported by the defendant or that plaintiffs had anything to do Avith such cases, nor are there any facts stated, from which it may be inferred that plaintiffs were the consignors of the other two cases, or were in any way connected with the marks upon them.

There is no allegation shoAving hoAV the several cases were marked, the pleader contenting himself with alleging a conclusion that the two other cases Avere marked “ in the same manner as the case referred to in the complaint.”

Reference to the copy bill of lading annexed to and referred to in the answer, shoAvs that the goods were consigned to L. Ullman & Co. (not to Hirsh), that the bill of lading contained the word “ order ” before the name of the consignees, , L. Ullman & Co., and that in such cases a proper indorsement by the consignees was required before the delivery of the property at destination. There is no allegation that the consignees had indorsed the bill of lading presented by M. Hirsh, or that M. Hirsh was entitled to receive the goods.

Subdivision 2 of section 500 of the Code of Civil Procedure requires, “ A clear, precise and unequivocal statement of any new matter constituting a defense or counterclaim.”

The pleading to which the demurrer was interposed should be condemned as being neither clear, precise nor unequivocal. It states no defense and is insufficient in law and the demurrer should not have been overruled.

The interlocutory judgment entered should be reversed, and the demurrer to the second separate defense sustained, with costs below and costs of this appeal, with leave to defendant to amend within six days.upon the payment of all costs.

Scott and Leventritt, JJ., concur.

Interlocutory judgment reversed and demurrer to second separate defense sustained, with costs below and costs of this appeal, with leave to defendant to amend within six days upon payment of all costs.