Strong v. Union Transfer & Storage Co.

New York Court of Common Pleas

Strong v. Union Transfer & Storage Co.

32 N.Y.S. 124, 11 Misc. 430, 65 N.Y. St. Rep. 219

DecidedFebruary 4, 1895

StatusPublished

This text of 32 N.Y.S. 124 (Strong v. Union Transfer & Storage Co.) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Strong v. Union Transfer & Storage Co., 32 N.Y.S. 124, 11 Misc. 430, 65 N.Y. St. Rep. 219 (N.Y. Super. Ct. 1895).

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Opinion

BISCHOFF, J.

This action was brought to recover for the loss’ of a trunk alleged to have been intrusted to the custody of the defendant by the plaintiff. To prove delivery of the property to the-defendant, plaintiff called one MacMichael, an expressman, who testified to its receipt by him, and that he forwarded it to the defendant’s warerooms by his servant, Collins. Collins testified that he left the trunk at defendant’s warehouse, but was unable to say that he had delivered it at any particular door, or had not actually left it on the street. Further, he did not recollect whether he had called: the attention of any of the defendant’s employés to the property.. [125]*125No receipt was taken upon this alleged delivery, and no contract with regard to the storage of the trunk was proven. This evidence was certainly insufficient to prove a„ delivery for the purpose of charging defendant upon its failure to return the chattel at plaintiff’s demand (Story, Bailm. [9th Ed.] § 297; Grosvenor v. Railroad Co., 39 N. Y. 34); but it was sought further to prove an admission upon the part of defendant’s agent, Jones, that a delivery had in fact been made by introducing the testimony of the plaintiff with regard to statements made to her by Jones in the course of a conversation had between them nine months after the delivery was claimed to have taken place. This testimony was received, under objection to its competency as hearsay, and exception. The statements alleged to have been made were that “a trunk had been brought by Mac-Michael”; “no doubt the trunk was mine, but it had been given to .another party”; and she further testified, “His description led me to believe that it was my trunk.” Whatever value as proof of an admission by the individual making them may have been attributable to these statements, they were improperly admitted for the purpose •of binding the defendant, being in no way connected with the res gestae, and the objection to the testimony as hearsay was well taken. Green v. Railroad Co., 12 Abb. Pr. (N. S.) 480; Thallhier v. Brinckerhoff, 4 Wend. 394; Anderson v. Railroad Co., 54 N. Y. 334, 340. Failing sufficient evidence of a delivery of the chattel, and for the errors noted, a new trial of the cause should result. Judgment reversed, and new trial ordered; costs to abide event.

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BISCHOFF, J.

This action was brought to recover for the loss’ of a trunk alleged to have been intrusted to the custody of the defendant by the plaintiff. To prove delivery of the property to the-defendant, plaintiff called one MacMichael, an expressman, who testified to its receipt by him, and that he forwarded it to the defendant’s warerooms by his servant, Collins. Collins testified that he left the trunk at defendant’s warehouse, but was unable to say that he had delivered it at any particular door, or had not actually left it on the street. Further, he did not recollect whether he had called: the attention of any of the defendant’s employés to the property.. [125]*125No receipt was taken upon this alleged delivery, and no contract with regard to the storage of the trunk was proven. This evidence was certainly insufficient to prove a„ delivery for the purpose of charging defendant upon its failure to return the chattel at plaintiff’s demand (Story, Bailm. [9th Ed.] § 297; Grosvenor v. Railroad Co., 39 N. Y. 34); but it was sought further to prove an admission upon the part of defendant’s agent, Jones, that a delivery had in fact been made by introducing the testimony of the plaintiff with regard to statements made to her by Jones in the course of a conversation had between them nine months after the delivery was claimed to have taken place. This testimony was received, under objection to its competency as hearsay, and exception. The statements alleged to have been made were that “a trunk had been brought by Mac-Michael”; “no doubt the trunk was mine, but it had been given to .another party”; and she further testified, “His description led me to believe that it was my trunk.” Whatever value as proof of an admission by the individual making them may have been attributable to these statements, they were improperly admitted for the purpose •of binding the defendant, being in no way connected with the res gestae, and the objection to the testimony as hearsay was well taken. Green v. Railroad Co., 12 Abb. Pr. (N. S.) 480; Thallhier v. Brinckerhoff, 4 Wend. 394; Anderson v. Railroad Co., 54 N. Y. 334, 340. Failing sufficient evidence of a delivery of the chattel, and for the errors noted, a new trial of the cause should result. Judgment reversed, and new trial ordered; costs to abide event.

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32 N.Y.S. 124, 11 Misc. 430, 65 N.Y. St. Rep. 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strong-v-union-transfer-storage-co-nyctcompl-1895.

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