Eckstein v. Woolverton

MacLEAN, J.

In his action to recover for damage to and loss of contents of a valise while in the possession of the defendant, the plaintiff testified that he delivered same in good condition to the New York, New Haven & Hartford Railroad Company, at Providence, R. I., for transportation to New York, and received a baggage check therefor; that while on the train he handed said baggage check to an agent of the defendant, with direction to deliver said valise- at his residence, and paid the charge therefor; and that said valise was delivered at his residence in a damaged condition and certain of its contents missing. ■ . ,

, Were there proper proof of its delivery at his residence in a damaged condition, the plaintiff would have been entitled to recover, because by proof that he delivered it in good condition to the railroad he cast the burden upon the defendant of showing that the valise was transferred to it by the railroad in the condition in which it was delivered by the defendant to the plaintiff; but of this there is no proof. Myerson v. Woolverton, 9 Misc. Rep. 186, 29 N. Y. Supp. 737; Berkowitz v. Chicago, M. & St. P. R. Co., 109 App. Div. 878, 880, 96 N. Y. Supp. 825. The only evidence of delivery in a damaged condition at the residence of the plaintiff is found in the testimony of the plaintiff, who, questioned as to whether he was at the house at the time the valise was received, answered:

“I was not there then, but I was there a short time afterwards—about half an hour.”

There being no evidence as to who received the valise, -or where it' was deposited meanwhile, and until its discovery by the plaintiff himself, the trial justice rendered judgment in favor of the defendant, and this court may not disturb the determination. Canfield v. Baltimore & Ohio R. R. Co., 75 N. Y. 144.

Judgment affirmed, with costs. All concur.