De Mott v. Laraway

14 Wend. 225

• Court: New York Supreme Court
• Decided: October 15, 1835
• Status: Published

Opinion

By the Court,

Sutherland, J.

The court of common pleas erred in reversing the judgment of the justice. Laraway was a common carrier upon the canal, and as such undertook to transport the defendant’s goods from Troy to Kidder's ferry. This necessarily included the duty.of delivering the goods there in safety. They were all thus delivered except a hogshead of molasses, which was stove, in the act of being unladen; as they were hoisting it from the boat, with a tackle attached to a store house upon the bank of the canal, the rope broke, and the hogshead fell into the boat, and most of the molasses was lost. Although one of the defendants was present, there is no pretence that he had accepted the molasses as delivered, previously to the accident,or that he had any thing to do with the delivery. The delivery was not complete when the accident occurred, and the goods were still at the risk of the carrier. It is a matter of no importance that the machinery employed in unlading the boat was attached to and belonged to a store on the bank of the canal, and not to the carrier’s boat. It was pm hac vice his tackle, and he was responsible for its sufficiency. When the responsibility of a common carrier has begun, it continues until there has been a due delivery by him.. 4 Kent's Comm. 604. 4 T. R. 581. 5 id. 389.

The objection of the defendant in error, that the claim of the defendants for the injury sustained by them, was not a proper subject of set-off, is disposed of by the stipulation of the parties that the whole matter should be submitted to the justice.

Judgment reversed.