The appeal is from an order allowing amendment to the complaint. The complaint in this action, begun on November 3, 1905, alleges that for a reasonable compensation defendant received and agreed to carry plaintiff’s trunk between two points in the city of New York, and that the trunk was broken open and a quantity of jewelry and valuable stones taken therefrom.
The answer, after some denials, stated separate defenses, and thereby the issue was raised that the defendant, having as a special carrier contracted to carry the personal baggage of the passenger from a railroad train, received a trunk containing merchandise and jewelry, the nature and value of which were concealed from the carrier, whereby it was committed to the carriage of articles for the ordinary compensation of carrying baggage.'
A verdict was had by the plaintiff, whereupon a new trial was granted by Mr. Justice Jaycox, with an opinion (69 Misc. Rep. 425), whereon the order was affirmed by this court (147 App. Div. 908). The essential thing decided is stated by the learned trial justice as follows: “ So far as the jewelry in the trunk was concerned there was no contract as to it, and the defendant had no knowledge that it was in its possession. This being so, I am of the opinion that plaintiff had no cause for action.”
The trial court refused to charge the jury that a verdict could be predicated upon the larceny of the contents of the trunk by defendant’s servants on the ground that the action was not for a conversion. The trial was had in May, 1910; the order setting aside the verdict was entered on October 17, 1910; notice of appeal was filed October twentieth; the decision of this court was rendered on November 17, 1911, and a motion to amend the complaint was made on or about November 21, 1911.
The amended complaint, allowed on payment of full costs, seems to state a cause of action based on an agreement to carry safely, and another for conversion of the trunk and its contents by the defendant, his agents and servants. The amended order was entered December 5, 1911, at which time the cause *793of action for conversion was barred by the Statute of Limitations. The defendant appellant appeals from this order chiefly upon the ground that the plaintiff was enabled thereby to set up a new and distinct cause of action after decision against him on the underlying contract for carriage, and after such laches that the Statute of Limitations had run against the new cause of action.
The plaintiff misled willfully or negligently the defendant to accept as his baggage a trunk containing valuable merchandise in the form of jewelry, etc., and knowingly made compensation therefor at a rate reasonable for the carriage of usual personal baggage. In view of this, and the ruling respecting it, the action was not maintainable. Hence the plaintiff would interpolate a cause of action for conversion, and it is not amiss to notice that there is no statement in his moving papers of facts that tend to justify his delayed accusation. He has or has not the evidence of it. If he has it, he should have stated the facts. But his attorney alone makes the affidavit, and he is silent on that subject. What then is his project for proving the conversion ? Is it not to show the demand and non-delivery ? Thereby he proves a bailment for hire and non-delivery on demand. This would throw on defendant the burden of showing loss under conditions consistent with due care. (Claflin v. Meyer, 75 N. Y. 260.) In substance, what he has unsuccessfully attempted under a plea of contract, he would attempt under a plea of conversion. But the essential consideration is that it has been established that his misconduct vitiated his alleged contract. But it was by this same misconduct that he induced the defendant to receive his baggage, misleading him to inadequate handling, guarding and policing merchandise of such value. Considering himself hopelessly defeated in maintaining the integrity of his contract, and having waited until his cause of action for tort was barred by the Statute of Limitations, he now seeks- to use this action for enforcing a barred cause of action. The contract and bailment arise from the same facts, and the plaintiff’s misconduct induced both.
It is not necessary to determine whether it is within the power of the court to allow the amendment, inasmuch as the impropriety of the allowing of it is evident by reason of the *794plaintiff’s initial breach of duty. Moreover, while plaintiff has been exploiting one cause of action that revealed his misconduct, the Statute of Limitations has barred an action for conversion, which he would give life by tacking it to an action on contract. Thus are raised issues that require the examination-of facts and circumstances now more than six years away in time, and the procurement of witnesses perchance scattered or unobtainable, and the embarrassment to defendant is caused by the plaintiff’s electing his form» of action and pursuing it.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Burr and Carr, JJ., concurred; Jenk's, P. J., and Woodward, J., voted to affirm on the opinion of Mr. Justice Kapper at Special Term.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.