Opinion
March, 1899.
Abraham Van Santvoord, for appellant.
Joel M. Marx, for respondent.
The facts in this care are undisputed and upon those facts the judgment must be reversed. There is an entire absence of proof in the case showing that the loss of the articles claimed in the complaint, did not occur between the time of the delivery by the defendant to the persons sent by the plaintiff to take the goods from the possession of the defendant, and the time of the delivery of the package from which the articles were missing, to the plaintiff.
"In an action against a common carrier to recover for goods alleged to have been abstracted from packages delivered to him for transportation, which packages are duly delivered to the consignee, the burden is upon plaintiff to show that the goods were abstracted while the packages were in the possession of the defendant, and before delivery; it is not sufficient to show a state of facts as consistent with the occurrence of the loss after as before the delivery." Canfield v. Baltimore Ohio R.R. Co., 75 N.Y. 144.
Judgment reversed and new trial ordered, with costs to the appellant to abide the event.
MacLEAN and LEVENTRITT, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.