(dissenting):
I dissent: It is- established by the statement of facts that, notwithstanding the signs- and notices. “ Loaded trucks not allowed in ■stables,” “ Hot responsible for merchandise, left on vehicles,” the practice of leaving loaded trucks at the stable had been permitted by defendant for ten years. It is also established that the defendant’s employees, in the regular course of their duties, unhitched the horse attached to McDonald’s truck containing the merchandise in ■controversy, and put the truck in its usual place in the stable. It is also- established that, the defendant himself on the morning of *574September 4, 1907, harnessed the horse to the truck and personally delivered the horse, truck and goods to an entire stranger who was a thief.
The plaintiff’s cause of action is not based upon a conversion of the goods by the defendant to his own use, nor upon a loss of the goods by accident' while in the defendant’s possession, b,ut is based upon the active participation of the defendant in delivering them to a wrong person, an entire stranger, who turned out to be a thief. The defendant had the physical possession of the goods because he had in his stable the truck upon which they were loaded, and, notwithstanding his regulation, he permitted the truck so loaded to be and remain in his stable.
I think that for the. wrongful delivery the real owner has a right of action. “ The degree of diligence which is exacted of each of the several classes of bailees in respect to the care of the thing bailed has no application to the liability of the bailee in respect to its return or delivery. •' Every bailee is bound at his peril to know that the person to whom he delivers the chattel is the proper person to receive it, and if he delivers it to the wrong person, though acting in perfect good faith, he is nevertheless liable for its conversion.”, (3 Am. & Eng. Ency. of Law [2d ed.], 754, quoted in Sonn v. Smith, 57 App. Div. 372.)
In Willard v. Bridge (4 Barb. 361) the court said : “The judge charged the jury that if they believed the hops had been by negligence or mistake delivered to Newbury, or any one else but the true owner, it was a conversion by the defendant. * *. * But the cause was tried and submitted to the jury upon the assumption that the property had been taken by some person other than the owner from the warehouse of the defendant, and the jury have found that it was delivered to such person by the mistake or negligence of the defendant; that is, that by his act, and not by his mere omission, the property has been lost to the plaintiff. This in law is a conversion of the property for which the defendant is liable in an action of troverl”
In Esmay v. Fanning (9 Barb. 176) the court said : “ The question,, therefore, becomes narrowed down to this: Whether a bailee of a chattel is answerable in trover on showing a delivery to a person not authorized to receive it. In Devereux v. Barclay (2 *575Barn. & Ald. 702) it was held that trover will lie for the misdelivery of goods by a warehouseman-, although such misdelivery was occasioned by mistake only — and this court, in Packard v. Getman (4 Wend. 613), held that the same action would lie against a common carrier who had delivered the goods by mistake to the wrong person. * * s If trover will lie against a common carrier or a warehouseman for á misdelivery it can, under the like circumstances, be sustained against a bailee for hire or a gratuitous bailee.”
In McKillop v. Reich (76 App. Div. 334) the defendant was the keeper of a livery stable. Two carriages were driven to the defendant’s stable to remain during a "wedding entertainment. Certain personal property contained in the carriages was taken from them, and, under the direction of the person who was found in charge of the stable, these articles were placed in the office. The defendant was outside of the stable at the time, and plaintiff told him he had • left the articles in the office, to which the defendant responded “ all right.” Subsequently plaintiff was unable to get his personal property deposited in the office, and some time later he made a personal demand on the defendant for a return of his property, which was not returned, and the defendant-declined to return the property or to give any explanation for his refusal. The court said: “ Under these circumstances the rule is well established that even a gratuitous 'bailee is liable for the value of the goods,” citing cases.
It is attempted to distinguish this case from the one at bar, because in the McKillop case the defendant said “all right” when told that the personal property had been put in the office, but that simply indicated knowledge and acquiescence, and said knowledge and acquiescence are supplied in the case at bar by the receipt of the truck with the goods on it by the defendant’s employees, their storing it in a given place, and is stronger-against the defend-' ant because of his active participation the next morning in hitching up the team and in personally delivering it with the goods to an entire stranger.
I think, upon the conceded facts, the judgment should be for the plaintiff for $1,228.29.
McLaughlin, J., concurred.
Judgment ordered for defendant. Settle order on notice.