Lustig v. International Navigation Co. , 78 N.Y.S. 885 ( 1902 )

Delehanty, J.

The judgment and order appealed from must ba reversed. The conceded question in the case upon which all others hinge, is whether the defendant ever received into its care the haggage in question. If there was no delivery to it there could be no liability for such only attaches from the time of delivery and acceptance. Grosvenor v. N. Y. C. R. R. Co., 39 N. Y. 34.

The most favorable inference to be drawn from the testimony in aid of plaintiff’s contention that there was a delivery, brings it far from the point of connection. The plaintiff’s own testimony is to the effect that when she arrived at Antwerp she took the receipt or bill of lading which she had received for her baggage at Slatro, when she commenced her journey, and gave it to the trainman, who in return gave her a freight receipt for same. This was in the railroad station, and then and there she says she sáw her baggage. This freight receipt purports upon its face to have been issued by the Imperial Royal Austrian Government Railways, and on the reverse thereof is written, “ Baggage will follow as soon as it arrives,” and stamped, “ Red Star Line, Antwerp, Hay 25th, 1901, Baggage Department.” While it is conceded that the Eed Star Line is part of the defendant corporation, yet I have searched the record in vain to discover authority in any one to place its stamp in writing upon the back of that paper; and yet, it in itself is relied on to connect and bind defendant in this case. There is not a vestige of evidence of delivery to defendant, and the very paper relied upon negatives the proposition. For, even assuming the stamp and writing in question were regularly placed thereon by defendant’s duly authorized agent, the evidence shows that at the time it was done there had been no delivery. The burden was on the plaintiff to show a delivery, and until she did so defendant could not be made responsible for the baggage in question. Aikin v. Westcott, 123 N. Y. 363.

The motion to dismiss should have been, granted, and for the error thus committed the judgment and order appealed from must be reversed and a new trial granted to appellant, with costs to appellant, to abide the event.

O’Dwyer, J., concurs.

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