Curtis v. Avon, Geneseo & Mount Morris Railroad

49 Barb. 148, 1867 N.Y. App. Div. LEXIS 121

• Court: New York Supreme Court
• Decided: June 3, 1867
• Status: Published

Opinion

By the Court, Johnson, J.

The summons was properly served, as appears by the return, and the justice acquired thereby complete jurisdiction of the parties. A service on a director of a corporation is regular. (Code, § 134. Wheeler v. The New York and Harlem Railroad Co. 24 Barb. 414. The New York and Erie Railroad Co. v. Purdy, 18 id. 574.)

The objection to the inquiry made of Booth, and his answer, was not well taken. Booth was the defendants’ agent, and had charge of the depot and freight therein, at Mount Morris, when the -baggage in question was lost. He was the proper person to inquire of, and his answer is part of the evidence of the loss. It is clearly res gestee. So in regard to the arrangement between the plaintiff’s son and Leming, the baggage master, that the baggage might remain at the depot, and he would see to it till it could be sent for. (McCotter v. Hooker, 4 Seld. 497.) But were this otherwise, the error would be cured, as both these agents were used as witnesses on behalf of the defendant, and testified to the same facts precisely, and to nothing different in any essential particular.

The evidence to show that the plaintiff’s son was lame'and unable to take charge of his baggage personally, was properly received. It tended to prove that he was guilty of no negligence in not calling for, and taking charge of, his baggage upon the arrival at his place of destination; and, also, a good reason for making the arrangement with the defendants’ agents, that it should remain in the defendants’ custody until called for.

Upon the merits, the defendants’ liability was correctly determined. The case of Roth v. Buff, and State Line R. R. (34 N. Y. Rep. 548,) settles the rule that where a passenger on-arriving at his destination, neglects to look after his baggage, and negligently leaves it, without any arrangement that the carrier shall retain it for him, and it is lost while thus situated, without fault on the part of the carrier, he is not liable. In the present case, there was no delivery of the baggage by the defendant, and no neglect to claim it, or to inquire for it, by the plaintiff’s son. On the contrary, it was retained by the defendant on request, until it could be sent for. In this respect, the case is nearly identical, in its facts, with that of Powell v. Myers, (26 Wend. 591,) which is not overruled in Moth v. State Line Railroad Go. (supra,') hut is on the contrary conceded to he sound law. (See also Hollister v. Nowlen, 19 Wend. 234, and Cole v. Goodwin, Id. 251.) Upon the undisputed facts of the case, the defendant’s liaility, as common carrier of the baggage in question, continued after such baggage was taken from the cars, and until it was delivered or tendered to the owner. The judgment must, therefore, be affirmed.

[Monroe General Term, June 3, 1867.

Welles, E. D. Smith and Johnson, Justices.]