Swenson v. Ward

48 Misc. 534, 96 N.Y.S. 175

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 15, 1905
• Status: Published

Opinions

MacLean, J.

The defendant hired the coal boat “ S. McKinley,” about November 28, 1904, for six months, at forty dollars a month; and on February 7, 1905, .-.rote the owner, here the plaintiff: “ I have this day sent your boat, S. McKinley, to your dry-dock,in Jersey City.” The boat did not come to the plaintiff’s dry-dock, but was later found by him in damaged condition, with a quantity of ice inside, about three miles away, at Port Johnston, to which it had been taken for coal for the defendant by a towing company. The amount of the judgment, equalling, excepting costs, the balance of rent accruing between the last payment and the time of resuming possession, implies that the learned justice found the defendant absolved from any imputation of negligence because the primary accident, staving in of a plank at the light water-line, occurred while the boat was in charge of an independent company, towing, when ice was running, a flotilla in the very service for which the McKinley was chartered; thus, with evidence that no collision or other extraordinary thing occurred, that the boat was not fit, according to the implied warranty in every charter-party, written or verbal, for the service in which it was to be employed. From the fact that the boat was not delivered to the defendant, but taken by him in Brooklyn where left by the last freighter, and from other evidence, it might be inferred that he was not under the ordinary obligation of a bailee to return the article, to the bailor, had not the defendant assumed that obligation in his letter and so made himself liable for the cost of towage to the plaintiff’s dock with, perhaps, other, if any, resultant consequences of the misnotifieation. The judgment should be reversed.

Gildeesleeve, J., concurs.