By the Court, Mullin, J.
I shall assume, for the purposes of this case, that the plaintiff was the owner of the property in controversy, and that it was delivered to the defendant at Suspension Bridge, with notice that Darling, Albertson & Bose, Front street, Hew York, were the consignees. The plaintiff alleges in his complaint that the said property was delivered to the defendant at Suspension Bridge to be safely and securely carried, conveyed and transported by the defendant from Suspension Bridge to the city of Hew York, there to be safely and securely delivered in good order and condition, for the plaintiff, conformably to his orders and directions in that behalf. And the plaintiff further alleges, tha,t the defendants so carelessly and negligently conducted themselves in the premises that said goods were lost.
Ho express contract by the defendant to carry said property to Hew York is either alleged or proved. It is found by the justice who tried the cause that the defendant was a common carrier of freight from Suspension Bridge to Albany, the termini of their rail road, and that the defendant did not contract as a common carrier to transport the butter to Hew York and deliver the same to Darling, Albertson & Bose. The court also found that the defendant hauled the said butter safely over its road to Albany, and safely delivered the same to the Hudson Biver Bail Boad Company, and took receipts therefor. The liability of the defendant must rest, therefore, on the contract which the law implies, or the duty which the law imposes upon it, by the receipt of property to be carried over its road.
The court of errors in Van Santvoord v. St. John, (6 Hill, 157,) defines the duty of the carrier in these words : “Where goods are delivered to a carrier marked for a particular destination, without any direction as to their transportation and delivery save such as may be inferred from the marks themselves, the carrier is only bound to transport and deliver them according to the established usage of the business in which he is engaged, whether the consignor knew of the usage or not.”
[500]*500It was further held, in that case, that where goods marked for Little Falls were delivered to. a line of tow boats, running between Hew York and Albany, for transportation, and the goods were carried to Albany and then delivered to a canal line of boats to be transported to Little Falls, and it appeared that this was the usual course of business, the defendant had discharged its whole duty, and was not liable for a loss happening between Albany and Little Falls.
. I cannot perceive any difference in principle between the case cited and the case in hand, and it must therefore be held conclusive, unless there is some fact in this case not yet alluded .to which will distinguish it from Van Santvoord v. St. John. I will now allude to the only remaining facts that can be relied on to take this case out of the principles of the case cited; and they are these. That the goods, when they were delivered to the Great Western railway, to be carried from Detroit to Suspension Bridge, were entered on the freight bills as consigned to Darling, Albertson & Bose, Hew York. The receipts given by the defendant’s agent to the Great Western road were upon the freight bill, or a copy thereof, in which the goods were entered as consigned as aforesaid; that a portion of the property was entered in the freight bills accompanying the property over the defendant’s road from Suspension Bridge to Albany, as consigned* to said Darling, Albertson & Bose, and another portion for J. A. B., Hew York; and that in the receipts taken by the defendant from the Hudson Biver road, the property is all described as marked J. A. B., H. Y. In other words, that the defendant had notice that D., A. & B. were the consignees—a fact which I have assumed to be established in the case.
By the delivery to the Hudson Biver road, the liability of the defendant terminated, unless it omitted to give the necessary instructions to-the Hudson Biver Bail Boad Company, as to whom to deliver the property.
The receipts taken by the defendants from the Hudson Biver rail road are the only evidence given on this point, and there is [501]*501no finding by the court on the question. This omission (if there was one) was a breach of duty and is not to be presumed. The freight bill which the Hudson River road sent forward with the property would be the best evidence of the omission. But this bill is not introduced, nor is any agent or officer of that road or of the defendant called to speak on the subject. It seems to me, therefore, that we must presume that the defendant accompanied the delivery of the property to the Hudson River Rail Road Company, with all such instructions as the law required the defendant to communicate. (Newton v. Pope, 1 Cowen, 109. Schmidt v. Blood, 9 Wend. 268. Foote v. Storrs, 2 Barb. 326. 1 Cowen & Hill’s Notes, 298.)
The letters J. A. B. on the boxes would .not enable the Hudson River Rail Road Company to make a proper delivery of the property; and I apprehend no company having any knowledge of its legal rights and liabilities would receive property and assume the risk of a wrong delivery, without other means of protection than such marks would afford.
The defendant must be held to know who the consignees were; and it is doubtless the law that they were bound to communicate this information to the Hudson River Rail Road Company, and that a failure to do so would subject them to such damages as should result from its neglect.
If we are right in presuming that the defendant performed its duty in this behalf, then this action cannot be sustained. If, however, we are mistaken in holding that the defendant must be held to have performed its duty, and that the burthen is thrown upon it to show that it communicated to the Hudson River Rail Road Company the ñame and residence of the consignees, and that in this case no such proof is given, it then remains to inquire whether on the' evidence the plaintiff is entitled to recover.
Within the case of Van Santvoord v. St. John, the liability of the defendants as carriers had ceased, and their further liability, if any, was as forwarders. The complaint is not framed with a view to' liability in that character, and I am not [502]*502prepared to hold that the complaint could, by amendment, be made to charge them in their character as forwarders. If an action was brought against the defendant as a forwarder, to recover for the loss of these goods, the complaint must allege the delivery of the property to the Hudson Eiver Eail Eoad Company for transportation to New York, and that the defendant did not inform them that Darling, Albertson & Bose were the consignees; and that by reason of such omission the goods were delivered to the wrong persons, or otherwise lost to the plaintiff. The averments thus made must be proved. If, then, the question of pleading were out of the way, is there any proof in this case which would justify the finding of the facts necessary to support a judgment against the defendant for the omission suggested ? There is not a particle of proof that the loss resulted from the omission charged. For aught appearing, the goods may have been stolen on their way to New York, or sunk in the Hudson river.
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By the Court, Mullin, J.
I shall assume, for the purposes of this case, that the plaintiff was the owner of the property in controversy, and that it was delivered to the defendant at Suspension Bridge, with notice that Darling, Albertson & Bose, Front street, Hew York, were the consignees. The plaintiff alleges in his complaint that the said property was delivered to the defendant at Suspension Bridge to be safely and securely carried, conveyed and transported by the defendant from Suspension Bridge to the city of Hew York, there to be safely and securely delivered in good order and condition, for the plaintiff, conformably to his orders and directions in that behalf. And the plaintiff further alleges, tha,t the defendants so carelessly and negligently conducted themselves in the premises that said goods were lost.
Ho express contract by the defendant to carry said property to Hew York is either alleged or proved. It is found by the justice who tried the cause that the defendant was a common carrier of freight from Suspension Bridge to Albany, the termini of their rail road, and that the defendant did not contract as a common carrier to transport the butter to Hew York and deliver the same to Darling, Albertson & Bose. The court also found that the defendant hauled the said butter safely over its road to Albany, and safely delivered the same to the Hudson Biver Bail Boad Company, and took receipts therefor. The liability of the defendant must rest, therefore, on the contract which the law implies, or the duty which the law imposes upon it, by the receipt of property to be carried over its road.
The court of errors in Van Santvoord v. St. John, (6 Hill, 157,) defines the duty of the carrier in these words : “Where goods are delivered to a carrier marked for a particular destination, without any direction as to their transportation and delivery save such as may be inferred from the marks themselves, the carrier is only bound to transport and deliver them according to the established usage of the business in which he is engaged, whether the consignor knew of the usage or not.”
[500]*500It was further held, in that case, that where goods marked for Little Falls were delivered to. a line of tow boats, running between Hew York and Albany, for transportation, and the goods were carried to Albany and then delivered to a canal line of boats to be transported to Little Falls, and it appeared that this was the usual course of business, the defendant had discharged its whole duty, and was not liable for a loss happening between Albany and Little Falls.
. I cannot perceive any difference in principle between the case cited and the case in hand, and it must therefore be held conclusive, unless there is some fact in this case not yet alluded .to which will distinguish it from Van Santvoord v. St. John. I will now allude to the only remaining facts that can be relied on to take this case out of the principles of the case cited; and they are these. That the goods, when they were delivered to the Great Western railway, to be carried from Detroit to Suspension Bridge, were entered on the freight bills as consigned to Darling, Albertson & Bose, Hew York. The receipts given by the defendant’s agent to the Great Western road were upon the freight bill, or a copy thereof, in which the goods were entered as consigned as aforesaid; that a portion of the property was entered in the freight bills accompanying the property over the defendant’s road from Suspension Bridge to Albany, as consigned* to said Darling, Albertson & Bose, and another portion for J. A. B., Hew York; and that in the receipts taken by the defendant from the Hudson Biver road, the property is all described as marked J. A. B., H. Y. In other words, that the defendant had notice that D., A. & B. were the consignees—a fact which I have assumed to be established in the case.
By the delivery to the Hudson Biver road, the liability of the defendant terminated, unless it omitted to give the necessary instructions to-the Hudson Biver Bail Boad Company, as to whom to deliver the property.
The receipts taken by the defendants from the Hudson Biver rail road are the only evidence given on this point, and there is [501]*501no finding by the court on the question. This omission (if there was one) was a breach of duty and is not to be presumed. The freight bill which the Hudson River road sent forward with the property would be the best evidence of the omission. But this bill is not introduced, nor is any agent or officer of that road or of the defendant called to speak on the subject. It seems to me, therefore, that we must presume that the defendant accompanied the delivery of the property to the Hudson River Rail Road Company, with all such instructions as the law required the defendant to communicate. (Newton v. Pope, 1 Cowen, 109. Schmidt v. Blood, 9 Wend. 268. Foote v. Storrs, 2 Barb. 326. 1 Cowen & Hill’s Notes, 298.)
The letters J. A. B. on the boxes would .not enable the Hudson River Rail Road Company to make a proper delivery of the property; and I apprehend no company having any knowledge of its legal rights and liabilities would receive property and assume the risk of a wrong delivery, without other means of protection than such marks would afford.
The defendant must be held to know who the consignees were; and it is doubtless the law that they were bound to communicate this information to the Hudson River Rail Road Company, and that a failure to do so would subject them to such damages as should result from its neglect.
If we are right in presuming that the defendant performed its duty in this behalf, then this action cannot be sustained. If, however, we are mistaken in holding that the defendant must be held to have performed its duty, and that the burthen is thrown upon it to show that it communicated to the Hudson River Rail Road Company the ñame and residence of the consignees, and that in this case no such proof is given, it then remains to inquire whether on the' evidence the plaintiff is entitled to recover.
Within the case of Van Santvoord v. St. John, the liability of the defendants as carriers had ceased, and their further liability, if any, was as forwarders. The complaint is not framed with a view to' liability in that character, and I am not [502]*502prepared to hold that the complaint could, by amendment, be made to charge them in their character as forwarders. If an action was brought against the defendant as a forwarder, to recover for the loss of these goods, the complaint must allege the delivery of the property to the Hudson Eiver Eail Eoad Company for transportation to New York, and that the defendant did not inform them that Darling, Albertson & Bose were the consignees; and that by reason of such omission the goods were delivered to the wrong persons, or otherwise lost to the plaintiff. The averments thus made must be proved. If, then, the question of pleading were out of the way, is there any proof in this case which would justify the finding of the facts necessary to support a judgment against the defendant for the omission suggested ? There is not a particle of proof that the loss resulted from the omission charged. For aught appearing, the goods may have been stolen on their way to New York, or sunk in the Hudson river. The court cannot presume, in the absence of all evidence that there was a breach of duty on the part of the defendant, that such breach was the cause of the loss. The property being clearly traced in good order into the custody of the Hudson Eiver Eail Eoad Company, and thus, as it would appear a perfect remedy given to the plaintiff, it cannot be necessary to infringe on the well settled principles of the law, to afford the plaintiff a remedy.
It is urged, by the appellant’s counsel, that although there may be a right of action against the Hudson Eiver Eail Eoad Company, yet an action may be maintained against the defendant under section 53 of the general rail road act. (1 R. S. 4th ed. 1249.) That section provides, that “whenever two or more rail roads are connected together, any company owning either of said roads receiving freight to be transported to any place on the line of either of said roads so connected shall be liable as common carriers for the delivery of such freight at such place.” It may be assumed that the roads of the defendant and of the Hudson Eiver company are connected, within [503]*503the meaning of this statute. To recover, under this statute, against a company that would not otherwise be liable, the facts required to constitute the liability must be averred in the complaint. No such case is made in the complaint in this. action, and it is quite obvious from the complaint and trial that no such case was contemplated when the action was commenced or tried. And the whole nature and form of the action cannot and ought not now to be changed in order to make the defendant liable for a loss with which it had no manner of connection.
[New York General Term,
November 4, 1858.
Devies, Clerke and Mullin, Justices.]
The judgment must, for these reasons, be affirmed with costs.