Opinion
April 21, 1921.
Appeal from Municipal Court, Borough of Manhattan, Ninth District.
Action by Bernard Turkel against the American Railway Express Company. From a judgment for plaintiff in the sum of $ 469.14, after trial before the court without a jury, defendant appeals. Judgment reversed, and new trial granted.
Edgar R. Kraetzer, of New York City (Waller L, Bryant, of New York City, of counsel), for appellant.
Herman Turket, of New York City, for respondent.
Before BIJUR, WAGNER, and LYDON, JJ.
This's action was brought to recover for the alleged loss of three shipments of dressed poultry, alleged to have been made by the plaintiff from Fallsburgh, N. Y., to New York City, on different dates to different consignees. The only witness produced by the plaintiff to establish the fuels surrounding' the above shipments was his son Samuel. To all his direct testimony the defendant's attorney duly objected, upon the ground that the said witness was not competent to testify to the facts alleged by the plaintiff, in that he did not-possess personal knowledge with respect thereto. The witness then testified that he had personal knowledge as to all the facts, and the court admitted his testimony over said objections. Upon cross examination the defendant's attorney revealed that the witness Samuel . Turkel was not present when the poultry was packed; that the witness, did not accompany the shipments to the office of the defendant at Fallsburgh, N. Y., and did not see them delivered to the defendant Express Company; that the witness had no personal knowledge whatever respecting all these matters. In fact, the witness made the astounding admission that on the 1st day of July, 1918, the date of one of the shipments, he was "on his way to France." No one was present at the trial to testify to the fact of nondelivery, and it deafly appears from the record that the witness Samuel Turkel was not competent to testify on this point.
[1, 2] This case should be sent back for a new trial. The plaintiff failed to properly prove his case. The testimony of the witness Samuel Turkel was all hearsay, and should have been stricken out upon the motion properly made by counsel for the defendant. Furthermore, the record shows discrepancies between the proof offered and the allegations of the complaint. For instance, the first cause of action alleges a shipment from Fallsburgh to New York City, under date of August 13, 1919. Plaintiff's Exhibit H is supposed to be the express company's receipt showing the delivery of this shipment to the defendant for transportation to New York City. This receipt is dated September 13, 1918, and the whole examination was conducted with respect to the date of August 13, 1019, as alleged in the complaint, Even the figures arrived at in the computation are erroneous. The second cause of action alleges a shipment from Fallsburgh, N. V., TO New York City, under date of July 1. 1918, consisting of two boxes of poultry. Plaintiff's Exhibit A, a receipt to show delivery to the defendant, applies to a shipment from New York to Fallsburgh. Upon the trial the complaint was amended to conform to the proof on this shipment, and have it read from New York to Fallsburgh. The original receipts were not offered, but simply copies. It is inconceivable how the plaintiff could be so careless in making out the copies of these documents. Plaintiff's Exhibit B fails to establish anything, as the record does not connect it in any way with Exhibit A, and the writings themselves bear no connecting link.
The receipts issued by the defendant carrier are only evidence that a certain number of packages were received by them, and that the said packages were marked in a given manner. The contents of the packages, and the fact that they were never received by the consignee; must always be established upon the trial by competent testimony. In this the plaintiff failed, and the case must, be sent back for a new trial.
Judgment reversed, and new trial granted, with $30 costs to appellant to abide the event. All concur.