Leinkauf v. Lombard

17 N.Y.S. 953, 1892 N.Y. Misc. LEXIS 620

• Court: The Superior Court of the City of New York and Buffalo
• Decided: January 11, 1892
• Status: Published

Opinion

Freedman, J.

The controversy in this case arose out of the contract made by the plaintiffs with an agent Of the Hew York & Mobile Steam-Ship Line for the transportation of certain goods by that line from Yew York to Mobile. Under this contract the goods were placed on board of the Vidette, one of the steamers of said line, which started from the port of Yew York bound for Mobile, and was lost at sea. The action was brought to recover the value of the goods. The Yew York & Mobile Steam-Ship Line was a common carrier, for hire, between Yew York and Mobile, but was not a corporation, as its name might imply. Upon the trial the real controversy was narrowed down to three questions, namely: (1) Whether there was a binding contract on the part of the steam-ship line to insure the value of the goods without any declaration of their value before the sailing of the Vidette, and, if so, whether there was a failure of the steam-ship line to perform it; (2) whether the Vidette was or was not seaworthy; and (3) whether the defendants were associated in the control and management of the steam-ship line as individuals or in their corporate interests, and acting as officers of a corporation known as “Lombard, Ayers & Co.” There was a mass of conflicting testimony on each of these questions, and each of them was submitted to the jury. Upon the whole ease there was sufficient evidence to call for such a submission. It would have been error to dismiss the complaint, or to direct a verdict for the defendants. The disputed questions of fact were submitted to the jury under instructions which, taken together, fully and fairly guarded every right which the defendants had, and, the jury having determined the questions submitted to them in favor of the plaintiffs, their verdict, in the absence of error, should be held conclusive. An examination of the exceptions taken discloses no error which calls for reversal. • The judgment and order should be affirmed, with costs.