Opinion
November, 1904.
Winthrop Stimson, for appellant.
Joseph Sapinsky, for respondent.
This action was brought to recover the sum of seventy-two dollars for the alleged failure of defendant, a common carrier, to transport and deliver within a reasonable time a case of merchandise accepted by it on March 24, 1903, from the Boston Maine Railroad Company, a connecting carrier, and consigned by the Bell Shoe Clothing Company, of Lowell, Mass., to the plaintiff's assignor, the firm of L. Siff Brothers, New York city, and for its alleged failure to notify the consignee of the arrival of said merchandise within a reasonable time. It is claimed that the merchandise was not delivered, nor offered for delivery, until April 30, 1903, and that by reason of the defendant's failure to deliver it before that time and within a reasonable time, the said merchandise depreciated in value to the extent of seventy-two dollars.
The questions litigated upon the trial were as to the plaintiff's title to the goods, the receipt of the arrival of the merchandise at New York, and to the defendant's legal duty to give such notice.
The testimony as to the giving of notice is that upon March 26, 1903, the defendant's notice clerk, whose duty was to notify all consignees of the arrival of freight, mailed a postal card notice addressed to the plaintiff's assignor at 760 Broadway, the address upon the case. The postal was returned for some reason or other on the following day by an employee of Loft Company, who said that it had been delivered by mistake to his employers. Buckley thereupon immediately made out another notice after examining the case, and addressed it to L. Siff Brothers, at the same address, 760 Broadway, and personally deposited it in the post box; the notice was never returned to the Metropolitan Steamship Company. Upon failing to hear from the consignee, Buckley wrote to the agent of the Boston Maine Railroad Company at Boston, on April eighth, advising him of the consignee's failure to receive the goods, and requesting instructions for a disposition thereof. No reply was received to this notice. On April twenty-fourth, thereafter, Buckley sent a third postal card to L. Siff Brothers, directed as before, and to this postal Siff Brothers replied, and the goods were thereafter delivered to them, after some correspondence, on the 30th of April, 1904.
The only material testimony opposed to this is the testimony of the bookkeeper of the plaintiff, who testified that he did not receive the notice, but admitted that he was absent from the office at times, that it was possible for mail to come in that he would not see, and that postal cards coming into his hands might be thrown aside and never reach the hands of the firm. No member of the firm of plaintiff's assignor was called to corroborate the bookkeeper.
Upon this point the case seems to fall well within the decision in the case of Roth Clothing Co. v. Maine Steamship Co., 44 Misc. Rep. 237, especially as in the case at bar it was shown that the plaintiff was aware of the custom of carriers in this city to give notice in this manner.
Buckley was a disinterested and uncontradicted witness; his testimony is positive and not inherently improbable, and should not have been disregarded by the jury.
Judgment and order reversed. New trial ordered, with costs to appellant to abide the event.
BISCHOFF and FITZGERALD, JJ., concur.
Judgment and order reversed, and new trial ordered, with costs to appellant to abide event.