BIJUR, J.

Plaintiff, a dealer in whiskies, delivered a case of whiskey worth twenty dollars and a barrel worth ninety-four dollars to defendant, a public truckman, for delivery to a named consignee. That defendant was a common carrier has been decided upon the appeal from a judgment entered on a prior trial of this case. 116 N.Y.S. 638.

The articles were stolen while in defendant's possession. The barrel of whiskey, however, was recovered by the police and deposited with the property clerk.

The learned judge below held that, because of his duty to mitigate the damage, the plaintiff should recover this barrel from the police department.

I am of the opinion, however, that defendant has not been relieved of his obligation to deliver these goods safely, and has an adequate right, under the circumstances, to recover possession of the goods. Plaintiff, therefore, is not bound to submit to defendant's refusal to carry out his contract, nor to reduce, in the manner arbitrarily dictated by defendant, the damage caused by the latter's continued breach. Rollins v. Sidney B. Bowman Cycle Co., 96 A.D. 365. See also Eten v. Luyster, 60 N.Y. 252.

As all the facts necessary for a complete determination of the issues are concededly set forth in the agreed statement of facts, no purpose would be served by a new trial.

The judgment below, therefore, should be modified by directing judgment for the whole amount of plaintiff's claim, namely, one hundred and fourteen dollars, plus nine dollars and twelve cents, interest from October 1, 1907, to the date of submission, less the amount of defendant's conceded counterclaim of thirty-five dollars and twenty-three cents plus two dollars and thirty-five cents interest accrued on the date of the submission, plus additional interest on the balance from that date, February 24, 1909, until entry of this judgment; and, as modified, affirmed, with costs to appellant.

SEABURY and LEHMAN, JJ., concur.

Judgment modified, and, as modified, affirmed, with costs to appellant.