By the Court, Balcom, P. J.
The question to be determined in this case is whether the defendant’s responsibility, as a common carrier, for the butter in question, had ceased when it was stolen from the boat. I am of the opinion it had. I think the butter was in the custody and under the control of the plaintiff’s consignee, after the boat was towed to 26th street, Bast river. All of the plaintiff’s butter was there taken out of the inside of the boat and placed on the deck. The consignee had then ceased to be captain of the boat, but was present and soon sold one tub and two firkins of the butter, and delivered the same to the purchaser. When he left *307the other two firkins on the deck of the boat, without directing what should be done with them, the defendant ceased to be answerable therefor, except as a warehouseman. He had discharged every duty he owed the plaintiff as a common carrier, in regard to the butter. The plaintiff’s consignee made the defendant’s boat a warehouse for the butter in question, when he left the deck of the boat. He had the opportunity and an abundance of time to remove it, and did not request that it be put back into the boat or taken to any other place. The case is the same as if it had been proved that the defendant said to the consignee of the butter, after the boat was fastened at the foot of 26th street, “here is the plaintiff’s butter; what shall I do with it ?” and the consignee had answered, “put it out upon the deck of the boat,” before the same was placed there; and that after the consignee had sold and delivered the tub and two firkins of it, the defendant had asked him “what shall I do with the residue of this butter?” and the consignee had answered, “ let it remain where it is, I may sell it before night,” and then left. It seems to me to be very clear that the defendant did acts tantamount to an actual delivery of all the plaintiff’s butter to his consignee at the foot of 26th street, before the two firkins in question were stolen. I am therefore of the opinion that the Tompkins county court did right in reversing the judgment of the justice. It follows that the judgment of the county court should be affirmed with costs.
[Broome General Term,
November 19, 1861.
Decision accordingly
Balcom, Campbell and Parker, Justices.]