This action was brought in the Municipal Court to recover damages for the breach of a contract for the transportation from the city .of New York to Danbury, in Connecticut, of certain dogs, the *250property of the plaintiff. The pleadings in that court were oral. The record contains the statement that the action was for “ loss of goods by common carrier.” The evidence shows, however, that the case was treated as one for the breach of a contract. The plaintiff claimed that as a consequence of such breach one of the dogs died, and he was allowed to recover as part of his damages the value of that dog. From the judgment entered in the Municipal Court an' appeal was taken to' the Appellate Term of the Supreme Court, where the judgment was affirmed, and by leave of that court the case is now before us for review.
In the opinion of the Appellate Term it is properly remarked that the general rules of law respecting the obligations and liability of a carrier of animals are not the subject of discussion in this case. The question is as to thé proximate cause of the death of the dog. It is ascribed by the plaintiff directly to the breach of a special contract for transportation made by the plaintiff with the defendant’s agent; but a review of the evidence satisfies us to the contrary. An examination of the plaintiff’s own testimony will suffice to show that the death of the dog is to be attributed rather to his, the plaintiff’s, own neglect, than to the fault of or to the breach of contract by the defendant. According to the plaintiff’s, statement, in October, 1899 (the particular date is not mentioned), he was the owner of five Japanese spaniels, and at a quarter to seven o’clock in the morning he delivered them, boxed up in a crate, to the agent of the defendant in order that they might be shipped to Danbury in Connecticut, where he intended to exhibit them at a dog show. He locked them in the crate and kept the key in his possession. He asked the. defendant’s agent to send the dogs to Danbury by the eight o’clock morning train, but was told that they could not be shipped by that train. He stated to the agent that he desired the dogs to be sent by the train on which he, the plaintiff, would go, in order that they might receive the attention they required, and thereupon it was agreed between himself and the agent that the dogs should be sent down by the nine o’clock train. Ho written receipt was taken for the dogs. The plaintiff and his wife went to thé station to take the nine o’clock train, and then learned that “ all the dogs went down on the eight o’clock train.” Whether this refers to the plaintiff’s dogs or to all dogs that were being sent for exhibition to the *251show at Danbury is not clear, but the plaintiff’s counsel in his brief and statement of facts interprets this testimony as meaning that the plaintiff’s dogs were sent down on the eight o’clock train, instead of the nine o’clock train. At all events, when the plaintiff reached Danbury the dogs were not there; and later in the day he learned that they had been returned by the defendant to his place of business in the city of New York, where there was nobody to receive them. On learning that the dogs had thus been returned, the plaintiff communicated over the telephone with a neighbor of his named Wilson, and instructed Wilson to redeliver the crate of five dogs to the defendant, to be forwarded to Danbury by the five o’clock train on the next 'morning. They did not reach Danbury until the afternoon of the next day, and when the plaintiff opened the crate he found that one of the dogs was ill, suffering from the retention of urine. Efforts were made to relieve the animal, but it died two days afterward from a rupture of the bladder, caused undoubtedly by the retention of urine, resulting from the training and habit of the dog as a house dog, which would not in confinement perform the operation of relieving his bladder. The contention of the plaintiff now is that the death of the dog, resulting from the cause indicated, was the direct consequence of the breach of the defendant’s contract to send the dog down by the nine o’clock train, so that the plaintiff might accompany it and attend to its wants.
That there was a breach of a contract is plain, and whatever damages naturally resulted from that breach the plaintiff is entitled to recover.- The dogs, if they were sent by the eight o’clock train, were, sent in violation óf the contract; but they were returned to the plaintiff’s place Of business after the defendant failed to perform its special contract. That return would not relieve the defendant of liability if the dogs were to be regarded as still either actually or constructively in the defendant’s custody, and no interference of assumption of control over them had been exercised by the plaintiff, and he had remained in ignorance of the whereabouts of the dogs or what, the defendant had done with them. But he learned that they had been returned to his place of business, and then, he knowing of the peculiarities of the dog that died, of the necessity that existed for taking care of it and providing an opportunity for it to perform the operation of nature, and fully cogni*252zant of the peril to which the dog was exposed by being confined, telephoned to Mr. Wilson to redeliver the dogs evidently in the condition in which, they were to the carrier to be transported by train, the next day to Danbury -without in any way providing for their relief. He knew, not only as a veterinary surgeon, but from his ■intimate acquaintance with this dog lie had personally trained, precisely what his requirements were, and when he determined that the dog • should be redelivered to the carrier to be shipped again to a distant point, it was his duty to make provision for the necessity of the dog, and if he did not, he assumed the consequences of the situation. It does not relieve him from this responsibility that tire dog was locked up in a crate secured by a padlock, the key of which was with the plaintiff. A direction - to his friend Wilson, who assumed to perform the service of redelivering-the dogs to the defendant, would doubtless have resulted in this dog being properly relieved. The proximate .'cause of the death of the dog from the retention of urine and its consequences, was the neglect of the plaintiff to have the dog relieved, when it might have been done, and when it was within the plaintiff’s power to have it done by giving proper directions. Allowing the dog to be returned to the Custody of the- carrier after so many hours had elapsed from the time at which it was originally boxed up on the morning on which it was first shipped, without its wants being attended to, was an intervening cause to which its death may be attributed.
The determination of the Appellate Term and the judgment of the Municipal Court should be-reversed and a new trial ordered.
Van Brunt, P. J., and McLaughlin, J., concurred; Ingraham and Hatch, J.J., dissented.