Morel v. Stearns

36 Misc. 846, 74 N.Y.S. 1138

• Court: City of New York Municipal Court
• Decided: December 15, 1901
• Status: Published

Opinion

Fitzsimons, Ch. J.

The- defendants agreed to purchase from plaintiffs twenty bales of silk deliverable in April or May. All were duly delivered except six which were offered and refused by defendants on June first. On May thirty-first, plaintiffs gave to a truckman papers that would enable him to receive the silk in question from the customs officials, hut he did not remove same from the dock until the morning of June first.

Upon the trial the complaint was dismissed and thus this appeal. We think the ruling was correct. The contract plainly reads, “ Deliverable in April and May, 1900.” The plaintiffs contend that because they delivered the necessary papers to get the goods off the ship on May thirty-first to a common carrier, that such act constituted a delivery to defendants. We are against such proposition. The common carrier was plaintiffs’ agent and his neglect to deliver to defendants on May thirty-first was plaintiffs’ neglect. Although no place was fixed in the contract to make deliveries, yet the writings and acts of both parties show that plaintiffs were to do so at any reasonable place fixed by defendants. In this instance defendants instructed plaintiffs to make such delivery at their business place, 68 Green street, this city, and to do so on May thirty-first, which was not done.

We think thereupon the judgment must he affirmed, with costs to respondents.

Delehanty, J., concurs.

Judgment' affirmed, with costs to respondents.