Dart v. Ensign

New York Supreme Court

Dart v. Ensign

2 Lans. 383

CourtNew York Supreme Court

DecidedApril 15, 1870

StatusPublished

Cited by1 cases

This text of 2 Lans. 383 (Dart v. Ensign) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dart v. Ensign, 2 Lans. 383 (N.Y. Super. Ct. 1870).

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Opinion

By the Court

Mullin, P. J.

There were two bills of lading signed by plaintiff, the one showing consignment to the defendant at Buffalo, that consignor had paid $412.52, which sum consignee was directed to retain for consignor out of freight earned by plaintiff. . The freight came to $616.

By the other bill of lading the goods were consigned to Fox of Chicago to the care,of defendant at Buffalo. Freight to Chicago, $6.25 per ton, of which two dollars was to Buffalo. The two dollars was over tolls and unloading.

It would seem that the latter bill was intended to accompany the goods to Chicago, the other to accompany them to Buffalo only. The plaintiff knew from the second bill above mentioned, that defendant was not owner of the goods; that [386]*386he received the goods only to forward them to Fox at Chicago. The plaintiff, when he delivered the goods to the defendants, had a lien for their carriage. His obligation to carry terminated at Buffalo, and his freight was then earned. When he delivered the goods to defendant he either transferred to him his lien, or lie surrendered the property relieved from all lien.

It is obvious that it was the understanding between the consignor and the plaintiff that the latter was to be paid at Buffalo, as from the freight to that point the consignor’s advances were to he retained. There was no one but plaintiff to pay. It is not to he presumed that, in view of these provisions, the plaintiff parted with his lien and consented to look to Fox, or the Chicago B. & Q. R. R. Co. for his pay. The defendant was, I think, bound to pay freight when he accepted the goods. He was not liable for demnrrage if it was found that the detention was unreasonable. To subject an intermediate consignee to liability for damages in the nature of demurrage, he must own or have an interest in the property. The consignee at the place of final delivery may he liable although not interested in the property. '

For these reasons, I think the referee erred in his conclusions of law, and the judgment must he set aside and the order of reference vacated.

Judgment reversed.

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By the Court

Mullin, P. J.

There were two bills of lading signed by plaintiff, the one showing consignment to the defendant at Buffalo, that consignor had paid $412.52, which sum consignee was directed to retain for consignor out of freight earned by plaintiff. . The freight came to $616.

By the other bill of lading the goods were consigned to Fox of Chicago to the care,of defendant at Buffalo. Freight to Chicago, $6.25 per ton, of which two dollars was to Buffalo. The two dollars was over tolls and unloading.

It would seem that the latter bill was intended to accompany the goods to Chicago, the other to accompany them to Buffalo only. The plaintiff knew from the second bill above mentioned, that defendant was not owner of the goods; that [386]*386he received the goods only to forward them to Fox at Chicago. The plaintiff, when he delivered the goods to the defendants, had a lien for their carriage. His obligation to carry terminated at Buffalo, and his freight was then earned. When he delivered the goods to defendant he either transferred to him his lien, or lie surrendered the property relieved from all lien.

It is obvious that it was the understanding between the consignor and the plaintiff that the latter was to be paid at Buffalo, as from the freight to that point the consignor’s advances were to he retained. There was no one but plaintiff to pay. It is not to he presumed that, in view of these provisions, the plaintiff parted with his lien and consented to look to Fox, or the Chicago B. & Q. R. R. Co. for his pay. The defendant was, I think, bound to pay freight when he accepted the goods. He was not liable for demnrrage if it was found that the detention was unreasonable. To subject an intermediate consignee to liability for damages in the nature of demurrage, he must own or have an interest in the property. The consignee at the place of final delivery may he liable although not interested in the property. '

For these reasons, I think the referee erred in his conclusions of law, and the judgment must he set aside and the order of reference vacated.

Judgment reversed.

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2 Lans. 383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dart-v-ensign-nysupct-1870.

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