McMurray v. Fargo

Appellate Division of the Supreme Court of New York

McMurray v. Fargo

147 A.D. 422, 131 N.Y.S. 884, 1911 N.Y. App. Div. LEXIS 2894

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 15, 1911

StatusPublished

Cited by1 cases

This text of 147 A.D. 422 (McMurray v. Fargo) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McMurray v. Fargo, 147 A.D. 422, 131 N.Y.S. 884, 1911 N.Y. App. Div. LEXIS 2894 (N.Y. Ct. App. 1911).

Pincite

Opinion

Smith, P. J.:

This complaint was dismissed as not stating a canse of action. After alleging the character of the defendant in paragraph 3, it is alleged: “That said plaintiff on or about the 21st day of February, 1910, delivered to the defendant, its agents or servants, twenty-three horses, in first-class condition, sound and valuable, at Buffalo, N. Y., under, an agreement made by plaintiff with defendant whereby defendant agreed to receive from plaintiff as owner, or agent of the owner, the said horses, and forward and deliver them to the plaintiff at Fort Edward, N. Y., in consideration of the sum of $160.00 to be paid by the plaintiff.” The complaint further alleges that by reason of negligence in the forwarding of the said horses three of them died, and others were injured to plaintiff’s damage $1,000.

It does not seem to me material whether the action be deemed one in contract or in tort. If in contract, the plaintiff clearly has a right of action, because the contract was to deliver to the plaintiff. If in tort, it is immaterial whether the plaintiff is owner or agent of the owner. He was in possession of the property. The defendant took the property from him. If not the. owner he was clearly the bailee, and as such has the right to maintain this action. In Cyclopedia of Law and Procedure (Vol. 5, p. 210) it is stated: “It has been held uniformly that the bailee has a right of action against a third party who by his negligence causes the loss of or any injury to the-bailed article.” Numerous cases are cited to this proposition, including several New York State cases. The complaint, therefore, stated a good cause of action, and it is unnecessary to consider the ruling of the trial judge denying his power to amend the complaint.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.

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Smith, P. J.:

This complaint was dismissed as not stating a canse of action. After alleging the character of the defendant in paragraph 3, it is alleged: “That said plaintiff on or about the 21st day of February, 1910, delivered to the defendant, its agents or servants, twenty-three horses, in first-class condition, sound and valuable, at Buffalo, N. Y., under, an agreement made by plaintiff with defendant whereby defendant agreed to receive from plaintiff as owner, or agent of the owner, the said horses, and forward and deliver them to the plaintiff at Fort Edward, N. Y., in consideration of the sum of $160.00 to be paid by the plaintiff.” The complaint further alleges that by reason of negligence in the forwarding of the said horses three of them died, and others were injured to plaintiff’s damage $1,000.

It does not seem to me material whether the action be deemed one in contract or in tort. If in contract, the plaintiff clearly has a right of action, because the contract was to deliver to the plaintiff. If in tort, it is immaterial whether the plaintiff is owner or agent of the owner. He was in possession of the property. The defendant took the property from him. If not the. owner he was clearly the bailee, and as such has the right to maintain this action. In Cyclopedia of Law and Procedure (Vol. 5, p. 210) it is stated: “It has been held uniformly that the bailee has a right of action against a third party who by his negligence causes the loss of or any injury to the-bailed article.” Numerous cases are cited to this proposition, including several New York State cases. The complaint, therefore, stated a good cause of action, and it is unnecessary to consider the ruling of the trial judge denying his power to amend the complaint.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.

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Bluebook (online)

147 A.D. 422, 131 N.Y.S. 884, 1911 N.Y. App. Div. LEXIS 2894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmurray-v-fargo-nyappdiv-1911.

Opinion

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