On the 20th day of June, 1861, the plaintiff's assignor shipped two boxes of marble monument, from a station on the Harlem railroad, directed to "Elijah W. Brigham, Binghamton, New York, Harlem railroad to Albany, Erie and Chenango canal to Binghamton." The plaintiff did not accompany the stone, and gave no other directions than those mentioned upon the boxes. The goods were received by the defendants from the Harlem railroad, transported to East Albany, which is the terminus of the defendants' *Page 504 road, and deposited in their warehouse. This was on the 22d of June, 1861, and on the 5th of July, 1861, the defendants' warehouse, with a large amount of property contained in it, the property in question among the rest, was destroyed by fire. The plaintiff sues the defendants for the value of the marble thus destroyed, claiming that the liability of a common carrier remained upon them at the time of the loss. The defendants, on the other hand, contend that the carrier's liability had ceased, and they were under no greater liability than that of a warehouseman, which is that of care and diligence merely.
In receiving the goods in question from the Harlem road, in transporting them upon their road to East Albany, and into their warehouse in that place, all agree that the defendants acted as common carriers, and were subject to the responsibilities of bailees of that character. When or by what act was their character as such ended, and that of warehousemen or forwarders substituted? Was it when the property was removed from the cars and placed in safe deposit in their warehouse? The cases ofThomas v. Boston Railroad Co. (10 Metc., 472), and NorwayPlains Co. v. Boston and Maine Railroad Co. (1 Gray, 263), afford apparent countenance to this idea. In both of these cases, however, this important fact existed, that the place of delivery was at the termination of the carrier's road. The goods were to be delivered in Boston, and Boston was the termination of the carrying road. What would have been the duty of the carrier if the goods had required further transportation, was therefore not in question, and not alluded to by the court in either of those cases.
That the removal from the cars and deposit in their own warehouse did not, of itself, change the character of the defendants' liability, is established by the cases of Goold v.Chapin (20 N.Y., 259), and Van Santvoord v. St. John (6 Hill, 167.)
Those cases hold that the carrier must perform some act, distinctly indicating his intention, to end his liability as carrier, and calculated to accomplish that result, before he can *Page 505 cease to be a carrier, and become a forwarder or warehouseman. In the last case referred to, the defendants received the box of goods addressed to "J. Petrie, Little Falls, Herkimer Co.," with no other direction, transported it by their barges to Albany, and thence shipped it by a responsible line of canal boats on the Erie canal, to be delivered to the consignee at Little Falls. Before reaching that place, the box was rifled of its contents. The court held that it was not the duty of the defendants themselves to transport the property to Little Falls; that a compliance with their custom to deliver the same on board of a boat going to that place, was a performance of their duty as carriers.
In the case of Goold v. Chapin, the goods were also received at New York by the defendants, a barge company, and to be transported to a place on the Erie canal, west of Albany. The direction was to the plaintiffs, "to the care of Field Co., Brockport, N.Y., per Atlantic line." The goods arrived at Albany on the morning of the 14th of August, 1848, and during the day following were discharged into a float belonging to the defendants, and which was used as a place for storing and delivering goods to the canal boats going west. The defendants had at the time two warehouses at Albany, one on the dock, another on the pier. On Tuesday the 15th, the defendants gave notice to the agent of the Atlantic line, that the goods were on board the float for his line, requesting him to take them away. This notice was repeated on Wednesday morning and on Thursday morning. On the afternoon of Thursday, the goods were consumed while on board the float, by a fire which commenced on shore and spread among the shipping. This court held that the defendants were liable as carriers; that the notice to the Atlantic line, and their unreasonable neglect to take the goods, did not exempt them; that, to exempt themselves, the carriers must store the goods in a warehouse, or in some other way clearly indicate a renunciation of the relation of carrier. The court held that, as there was neither a deposit in a warehouse, which would have indicated clearly a renunciation of the carrier's liability, or a delivery to the carrier by canal, *Page 506 which would have fulfilled the duty of the first carrier, the defendants were liable.
The defendants in the present case did no act indicating that they had renounced the liability of a carrier. They simply unloaded and deposited the goods in their warehouse. Had this deposit been made in the warehouse of a company engaged in canal transportation westwardly, it would have been an act of great significance. But here the fact is expressly found that it was the custom of the further carrier to take the goods from the defendants' depot. The liability of the further carrier did not commence until he removed the goods from the defendants' warehouse. The deposit, therefore, by the defendants, in their own warehouse, did not afford any evidence of a renunciation of the carrier's liability. The case of Ladue v. Griffiths (25 N Y, 364) is somewhat similar. There the defendant was a warehouseman of Buffalo, and a carrier on the Erie canal, and used to receive freight from the west and forward it to the east by the first boat going, whether his own or that of other carriers. He received goods from Detroit, addressed to his care at Buffalo, and marked to go from "Buffalo to East Albany, at 30 cts. per 100 lbs." The presumption, the court say, from these facts alone, is, that the goods came to his possession as carrier, and, having been burned while in his warehouse awaiting transportation, he is liable for their value. The goods might have gone by some other line, in which case, Griffiths would never have been a carrier at all. But they might, at his pleasure, have been placed upon his own boats, and hence he was held as a carrier. In the present case, the goods came to, and remained in, the defendants' warehouse by their own act, awaiting transportation, and as a part of the contract of carriage. The goods were placed in the defendants' warehouse for their own convenience, for the purpose of, and until they should be delivered to the further carrier, for transportation by canal. (Ang. on Carriers, §§ 131, 140; Story on Railroads, 536; cited inLadue v. Griffiths, supra.)
I think the deposit in the defendants' warehouse was a mere accessory to the defendants' carriage, in which case the *Page 507 carrier's liability still remains. (Blossom v. Griffin, 3 Kern., 569, 572.) East Albany is upon the left bank of the Hudson river, a stream flowing down from many miles above Albany, and continues one hundred and fifty miles farther down. It was a boundary, impassable to the railroad, as no bridge then existed, and when reached, goods, whether they were to be at once shipped to the west, or whether that was their final destination, must necessarily have been unloaded in the warehouse, and left there until a barge or a canal boat should come to receive them, or they should be demanded by the owners. The defendants' liability as carrier was unbroken.
No claim is made by the defendants upon the argument that their liability is discharged by notice to the further carrier that the goods were ready for his transportation. There was no sufficient notice in the present case, and in Goold v. Chapin (supra), the notice repeatedly given and unreasonably neglected by the further carrier was held to constitute no defense.
I am for affirmance of the judgment.
Judgment affirmed. *Page 508