Foy v. Troy & Boston Rail Road

24 Barb. 382, 1856 N.Y. App. Div. LEXIS 151

• Court: New York Supreme Court
• Decided: March 3, 1856
• Status: Published

Opinion

By the Court, Harris, J.

At the time this cause was decided in the courts below, there was a conflict of opinion in this court upon the question whether a cause of action for an injury to personal property was assignable, so as to vest in the assignee a right of action. It is probable that the justice’s court maintained the negative of this question and granted the motion for a nonsuit upon that ground, and that the county court concurred in that view. But that question has since been settled by the decision of the court of appeals in McKee v. Judd, (2 Kern. 622.) The doctrine of that case is, that all demands arising from injuries to property are assignable, and when assigned, the action is properly brought in the name of the assignee.

The only point upon which the counsel for the defendants relied, upon the argument, was, that the defendants were only carriers from Troy to Eagle Bridge, the terminus of their road. But a sufficient answer to this position is, that the wagon .was to be carried to Burlington. It was consigned to a person residing there. Having been received by the defendants, thus addressed and consigned, they must be understood,in the absence of any proof to the contrary, to have agreed to deliver it, in the same order and condition in which it was received, to the consignee. It was no part of the plaintiff’s business to inquire how many different corporations made up the entire line of road between Troy and' Burlington; or, having ascertained this, to determine at his peril, which of such corporations had been guilty of the negligence which resulted in the injury to his wagon. He made his contract with the defendants. They agreed to deliver his wagon safely at Burlington. Whether they were to carry it upon their own, or the road of some other corporation, was a question which did not concern the plaintiff. If the defendants had thought fit to limit their liability to injuries occurring upon their own road, they should have provided for such limitation in their contract. I am of "opinion that the judgment of the county court and that of the justice’s court should be reversed.

[Albany General Term, March 3, 1856.

Harris, Watson and Gould, Justices.]