Koch v. Westcott Express Co. , 8 N.Y. St. Rep. 904 ( 1887 )

Pratt, J

We think this recovery cannot be sustained. Plaintiffs employed defendant to deliver a parcel of garments at the store of one Friedman, in. Greenpoint. They asked him to take the parcel on Friday, December 19,1885, and were told that it could not be delivered on that day. Defendant, however, took the parcel on Saturday, twentieth, under an agreement to deliver it that day,, and sent it to Bowrou’s express on the same day for that purpose. Bowrou’s driver testified that on the same day it was received he took the parcel to Friedman’s store about five p. m., and tendered it to a lady there in charge, who refused to receive it or pay the charges. Friedman said there were ladies, employed at his store, and that in his absence his employees received goods for him. He was not at the store until about five p. m., and says the parcel was not delivered to him. The ladies were not called to deny the driver’s testimony. Friedman expressly said that he would not contradict the driver Under those circumstances a tender of the goods to the consignee on Saturday was fairly shown, and unless the goods were thereafter injured while in the expressman’s custody, the defendant Tras not liable. The plaintiff examined the goods some days later, and said there was no injury to them. This was not disputed. They stood solely on failure to deliver on Saturday, December twentieth.

We think for reasons above expressed that tha„ ground was not tenable.

Judgment reversed, with costs.

Barnard, P. J., and Dykman, J., concur.