Bigelow v. Woolverton , 119 N.Y.S. 630 ( 1909 )

LEIIMAN, J.

The plaintiff, a married woman, was traveling with her husband on the Pennsylvania railroad from Atlantic City to Hew York cityi Their baggage was contained in one trunk belonging to her husband. Shortly before his arrival in Hew York, plaintiff’s husband delivered to an agent of the defendant the baggage check for the trunk; and the defendant’s agent thereupon agreed to convey the trunk from the terminus of the Pennsylvania railroad in Hew York city to the Hotel Seville. The defendant failed to deliver the trunk. Thereafter the plaintiff and her husband brought separate actions for the value of their property against the defendant. The husband, apparently, obtained a judgment for $122. The plaintiff obtained a judgment for $300, and the defendant now appeals therefrom.

The plaintiff claims that the defendant made a contract with her through the agency of her husband for the transportation of her baggage. The evidence fails to disclose such a.contract. The defendant agreed with the plaintiff’s husband to convey one trunk. It made a single contract and assumed a single liability. It was not a carrier of passengers agreeing to transport the passenger’s baggage as an incident of the carriage of the passengers,'and we need not here consider any questions arising under such an agreement. It had assumed no duty to the plaintiff and was not required to transport her baggage, except by virtue of the single and indivisible contract to transport her husband’s trunk. The husband was not acting as her agent, since it appears that the trunk belonged to him and his own personal effects were also contained therein. He has sued the defendant for its breach of contract and recovered a judgment. There was only a single breach of contract and a single cause of action, and this cause cannot be split up.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Seabury, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.