Manhattan Oil Co. v. Camden & Amboy Railroad & Transportation Co.

52 Barb. 72, 1868 N.Y. App. Div. LEXIS 129

• Court: New York Supreme Court
• Decided: November 2, 1868
• Status: Published

Opinion

By the Court, Mullin, J.

The oil which is .the subject matter of this action was delivered to the Union Transportation and Insurance Company at Cincinnati under a contract between it and the plaintiffs’ agent to receive said oil and carry the same to the city of Hew York, for certain hire and reward in such contract specified. It was provided, in and by said contract that the said Union Transportation and Insurance Company should not be liable for damage or loss by fire or other casualty while said property was in depots or places of transhipment.

The said oil was carried on the cars of said Union Company, over the railroads between Cincinnati and Philadelphia, at which place it was delivered to the defendants to be carried to and delivered at the city of Hew York. It was carried over the defendants’ railroad to South Amboy, and there put on board a steamboat owned by the defendants, in the usual course of business, and by such vessel carried to Hew York and stored in the freight house of said defendants, on Sunday evening, July 10. And between that time and the morning of the 11th of the same month, the said freight house and the said oil were destroyed by fire, without any negligence on the part of the defendants.

Ho notice of the arrival of said property was given to the plaintiffs before the destruction by said fire.

If this action was against the Union Company, it is quite clear that no recovery could be had against it, as the property was, within the exception of the contract, destroyed while in a depot, awaiting delivery to the owner. ■ The liability of the carrier was not terminated at the time of the fire. Ho notice of the arrival of the property had been given; and until that was done, the responsibility of the carrier continued. This being so, the question, is, whether the defendants were liable for the loss of the property, as carrier, wholly irrespective of the contract with the Union Company ?

[New York General Term, November 2, 1868.

The contract with the Union Company provided for the transportation of the oil from Cincinnati to Yew York, and until the expiration of a reasonable time for its removal, after notice to the owner, of its arrival. The defendants are not liable on that contract. It was not a party to it.

Upon what principle, then, is it liable ? It is said that, it being a common carrier and receiving the property, as such, to be carried, the law authorizes the owner to elect to pursue it, instead of the company with which the contract was made. Such a proposition should rest upon the clearest principles, or the highest authority. Yo case has been cited, nor can one be found, establishing any such proposition.

The defendants received the goods from the Union Company, to be carried under its contract with the owner, and it was entitled to the benefit of all stipulations in such contract affecting its liability. As the Union Company would not on the facts proved, be liable for the property, neither would the defendants be liable. .

The judgment must therefore be affirmed.

Ingraham, J. I. Barnard and MidUn, Justices,