The complaint alleges that the plaintiff is a domestic corporation engaged in business in the city of Troy; that the defendant is a domestic railroad corporation engaged in domestic and interstate commerce, and that on the 28th day of February, 1910, the plaintiff caused to be shipped by the defendant to Covington, Ky., twenty-four bales of gunny bagging, containing 20,402 pounds, and prepaid the freight thereon amounting to $34.68; that said merchandise was rejected by the consignee at Covington, Ky., and that thereupon and immediately directions and orders were given to the defendant by both the consignee and this plaintiff to reship and return said merchandise to Troy, N. Y.; that said merchandise was reshipped and returned and conveyed by the defendant to Troy, N. Y., and the plaintiff was notified that said merchandise had been reshipped and was at a depot of the defendant at Green Island; that the plaintiff then and thereupon offered to pay to the defendant the freight charges from Covington, Ky., to the city of Troy, N. Y., amounting to $41.82, and demanded of said defendant that said merchandise be delivered to this plaintiff, but the defendant unlawfully refused to accept said freight charges and unlawfully refused to deliver said merchandise to plaintiff and unlawfully refused to allow and permit plaintiff to take said merchandise from its depot and station at Green Island aforesaid, all to the damage of this plaintiff of $174.44. It is then alleged that the plaintiff is the owner of the merchandise, and is entitled to *354the immediate possession of the same; that the defendant unlawfully and illegally retains possession of the same, and unlawfully and illegally refuses to deliver the same to the plaintiff, and in like manner refuses to permit the plaintiff to take the same, although the plaintiff has duly demanded of the defendant that it deliver same to the plaintiff and allow and permit the plaintiff to take the same after paying the freight charges thereon from Covington to Troy, and that the defendant has thereby and by reason thereof converted the same to its own use to the damage of this plaintiff. The value of the gunny bagging is alleged to be $216.26, and the plaintiff claims damage for this amount less the sum of $41.82, conceded to be due to the defendant for freight charges upon the goods.
The defendant’s answer admits the corporate capacity of the defendant and the fact of its carrying on the business of a common carrier. It likewise admits that on or about the twenty-eighth day of February it received certain property at its Green Island depot consigned to Overman & Schrader Co., Covington, Ky.; that said merchandise was duly transported to destination over the lines of defendant and its connecting carriers, and upon arrival at .destination was tendered to the consignee and that the said consignee thereafter refused to accept the same; that thereafter, in pursuance of orders from the plaintiff so to do, the said property was returned to the defendant at Troy, 3ST. Y. It also admits that the plaintiff paid the charges for the transportation of the said property from Green Island to Covington, Ky., and on the return of said property offered to pay defendant the transportation charges from Covington to Troy, amounting to forty-one dollars and eighty-two cents, and demanded delivery of said property upon payment of said freight charges. After denying knowledge or information as to the value of the property, the answer “upon information and belief, denies the allegations of the complaint and each and every of them not hereinbefore controverted or admitted.”
The evidence submitted upon the trial of the action clearly established the facts alleged in the complaint which were thus denied, so that it cannot be fairly questioned that the plaintiff established the cause of action alleged, and the only questions *355arising upon this appeal relate to the defendant’s “second and separate defense, and for a counterclaim to the alleged cause of action set forth in the complaint.” This alleged counterclaim realleges the formal matters set forth in its answer, and “further alleges that the said property was received and transported by it under and pursuant to the terms of a written contract, a copy of which is hereto annexed, marked Exhibit 'A,’ and made a part of this answer, which contained, among others, the following provisions: ” (No such exhibit is found in the record, with the exception of the excerpts, which are quoted from the alleged contract, and which appear to have been curtailed.)
“Sec. 5. ' Property not removed by the party entitled, to receive it within forty-eight hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given may be kept in car, depot or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage and to carrier’s responsibility as warehouseman only, or may be, at the option of the carrier, removed to and stored in a public or licensed warehouse at the cost of the owner and there held at the owner’s risk and without liability on the part of the carrier, and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage. * * * ’
‘ ‘ Sec. 8. ' The owner or consignee shall pay the freight and all other lawful charges accruing on said property, and if required, shall pay the same before delivery. If, upon inspection it is ascertained that the articles shipped are not those described in this bill of lading, the freight charges must be paid upon the articles actually shipped.’ ”
This so-called counterclaim then alleges that Covington is is not upon the line of the defendant’s railroad, but is upon the line of the Chesapeake and Ohio Railway Company; that the defendant duly transported the said property over its road and delivered the same to its connecting carrier on the route to destination; that after the arrival of said property at destination the Chesapeake and Ohio Railway Company duly notified consignee of the arrival thereof; that thirty-eight days, exclusive of Sundays and holidays, elapsed between the date of the said notice of arrival to consignee of said property and the *356receipt of orders from the plaintiff to return the said property to Troy, N. Y.; that the charges for the detention of said car containing the said property for said thirty-eight days as provided in the tariffs of said Chesapeake and Ohio Railway Company, duly published and filed with the Interstate Commerce Commission, amounted to the sum of thirty-eight dollars; that upon the return of said property to Troy, JST. Y., the defendant offered to deliver the same to the plaintiff herein upon the payment of the freight charges from Covington, Ky., to Troy, IST. Y., amounting to forty-one dollars and eighty-two cents, plus thirty-eight dollars demurrage charges, but that the plaintiff refused to pay the said charges; that in accordance with defendant’s tariffs, duly published and filed with the Interstate Commerce Commission, there have accrued upon said carload of property demurrage charges at the rate of one dollar per day, exclusive of Sundays and holidays, since the 30th day of June, 1910, to and including the date of the commencement of this action, viz., June 3, 1911, amounting in all to two hundred and seventy-nine dollars. The defendant then demands judgment for this sum, with the freight charges and demurrage added.
The judgment dismisses the counterclaim and gives the plaintiff the relief demanded in the complaint, the defendant appealing from the judgment.
Having before us only the portion of the alleged written contract set out in the answer, it may be assumed that the provisions quoted are most favorable to the defendant’s counterclaim, and it is worth while to look into the pleadings to see if there is a counterclaim pleaded. The provision of section 5 of this alleged contract is that if the property is not removed within forty-eight hours by the party entitled to receive it, after notice of its arrival has been duly sent, it “ may be kept in car, depot or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage and to carrier’s responsibility as warehouseman only, or may be, at the option of the carrier, removed to and stored in a public or licensed warehouse at the cost of the owner and there held at the owner’s risk and without liability on the part of the carrier, and subject to a lien for all freight and other lawful *357charges, including a reasonable charge for storage,” and here the language of the contract is cut off, though evidently continuing. Obviously the first provision quoted of the contract had relation to the obligations of the consignee in respect to the goods, and assumes the same are to be received by the consignee, and merely stipulates for a delivery other than a personal delivery to the consignee. It provides in place of the common-law contract that the common carrier is bound not only safely to convey but safely to deliver a parcel which he has undertaken to carry, at the place to which it is directed, to the consignee personally (Fisk v. Newton, 1 Den. 45, 47); that delivery may be made to the carrier as a warehouseman, and that the consignee will pay the expenses of such a delivery. But the charge against the person receiving the goods is “a reasonable charge for storage,” and the liability of the carrier is stipulated to be merely that of a warehouseman, so that if the consignee had received the goods in question, in the manner in which it was stipulated he might receive them, the charges would have been limited to reasonable charges for storage. As a warehouseman the defendant’s connecting carrier might have a lien upon the goods for their storage during any delay that the consignee might occasion, but just how the defendant, as the initial carrier, could have any lien upon the goods in question for the use of a car in which it is inferentially averred that the goods were stored for a period of thirty-eight days, and which was subsequently used in reshipping the goods to the plaintiff, is not quite clear. There is no provision in the .contract, so far as it relates to the carrier in the capacity of a warehouseman, which pretends to give the defendant a lien for these charges; it simply provides that upon a delivery, such as is provided for, the goods shall be “subject to * * * a reasonable charge for storage.” In the absence of agreement or statute, the lien upon goods for the storage charges extends only to cases of those engaged in the business of public warehousemen, and not to mere volunteers or to cases of private storage (30 Am. & Eng. Ency. of Law [2d ed.], 63), and it has been uniformly held in this State that the common-law lien given warehousemen does not extend to cases of private storage. (Merritt v. Peirano, 10 App. Div. 563, 565, *358and authorities there cited; affd. on opinion below, 167 N. Y. 541.) In the case cited it was said: “The lien of warehouse-men is now governed by statute (Chap. 526, Laws of 1885), which gives a lien only to a warehouseman or a person lawfully engaged exclusively in the business of storing goods, wares and merchandise for hire. This statutory provision would seem to deny a lien to persons storing goods who did not come within the terms of the statute.” (See Alton v. New York Taxicab Go., 66 Misc. Rep. 191, 192.) That the 1st clause of section 5, quoted above, does not pretend to give a lien to the defendant must be obvious when we read the further provision that at the option of the carrier the goods may be “removed to and stored in a public or licensed warehouse at the cost of the owner and there held at the owner’s risk and without liability on' the part of the carrier, and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage,” etc. Here is a contractual provision for a lien, but the lien runs to the warehouseman and not to the defendant; it is a provision for relieving the carrier of all responsibility upon delivering the goods to a public warehouseman, who shall have a lien for the cost to the owner of removing the goods, for the freight and other lawful charges, including a reasonable charge for storage. There is no suggestion that the defendant has any statutory rights or franchises which would enable it to carry on the business of a warehouseman, and the contract set out in the pleadings does not provide for a lien upon the goods for the storage, so far as section 5 is concerned, and, unless there is some other provision of the contract to help out the defendant’s contention, it follows that the judgment cannot be disturbed.
Section 8 of the alleged contract is set forth in the counterclaim, but this does not pretend to give the defendant a lien. It provides that the “owner or consignee shall pay the freight and all other lawful charges accruing on said property, and, if required, shall pay the same before delivery.” Ooncededly the plaintiff had paid the freight upon this shipment from Troy to Covington, and it does not appear that there were any other lawful charges against the property, and the contract, as we have already pointed out, merely provided methods of substi*359tutecl delivery, of which the defendant might avail itself. It is not alleged that it delivered the goods to a warehouseman; the only inference to be drawn is that it left the goods in the car in which they were originally shipped, and the defendant’s connecting carrier offered them to the consignee under conditions which undoubtedly relieved it of the obligations of a common carrier but which did not, either under the alleged contract or under any provision of law to which our attention is called, operate to give a warehouseman’s hen either to the defendant directly, or to its connecting carrier. The rule is well established that “when goods are safely conveyed to the place of destination, and the consignee is dead, absent, or refuses to receive, or is not known and cannot after due efforts are made be found, the carrier may discharge himself from further responsibility by placing the goods in store with some responsible third. person in that business, at the place of delivery, for and on account of the owner. When so delivered the storehouse keeper becomes the bailee and agent of the owner in respect to such goods. ” (Fisk v. Newton, 1 Den. 43, 47; North Pennsylvania Railroad v. Commercial Bank, 123 U. S. 727, 734.) The contract, as set out in the pleadings, evidently modified this rule, so that the defendant, or its connecting carrier, could set the car apart and store the goods therein, relieved of the responsibilities of a common carrier. When this was done the relations between the plaintiff and defendant, under the terms of the contract so far as we may determine from what is before us, changed. The goods were delivered by the initial carrier (the defendant) to its connecting carrier, and by the latter transported to the place of destination, and the consignee was notified and the car was set apart and upon the private switch of the consignee, where it remained for several days before the consignee rejected the goods. After forty-eight hours from the time that notice was given the delivery was complete within the contract; the contract of the common carrier was at an end, and the connecting carrier merely held the goods subject to the condition that “ the party entitled to receive” the same should be liable for “a reasonable charge for storage, and to carrier’s responsibility as warehouseman only,”
*360So far as the defendant is concerned, therefore, the goods were in Covington, Ky., where they were lawfully in the possession of the defendant’s connecting carrier as bailee and agent of the owner, the plaintiff in this action, and the plaintiff owed to the Chesapeake and Ohio Bailway Company, such connecting carrier, a “ reasonable charge for storage,” but, so far as appears, without any provision for a lien upon the goods for that amount, as there is nothing to show that the Chesapeake and Ohio Bailway Company has any authority to act as a warehouseman, or that there was any intention of giving such corporation a lien upon the plaintiff’s goods. Moreover, it is not claimed that the Chesapeake and Ohio Bailway Company eve'r assigned any claim for these charges to the defendant. With the plaintiff’s goods in Covington, in the hands of its bailee and agent, the plaintiff sent an order for the return of these goods, and the Chesapeake and Ohio Bailway Company, as a common carrier, became the initial carrier. In point of law an entirely new transaction was undertaken, as much as though the railroad company had exercised its option and delivered the goods to a public warehouseman and the latter had, as the bailee and agent of the plaintiff, offered the goods for transportation to the city of Troy, and the only lien which the common carrier could impose upon this shipment was such as grew out of the contract for transportation from Covington to Troy. This lien the plaintiff offered to discharge by tendering the amount of the freight charges, and the defendant, by refusing to deliver the goods, has unquestionably made itself liable for the value of the same, less the amount of freight charges. Whether the Chesapeake and Ohio Bail-way Company was bound to deliver the goods as bailee and agent of the plaintiff to itself as the initial carrier it is not necessary to decide here. It did deliver the goods to the defendant as a connecting carrier entirely independent of the original contract under which the plaintiff forwarded the goods to Covington, and the defendant took the consignment into its charge the same as though it were an original shipment. It had no power or authority to make the collection of storage charges in Covington, accruing before the relation of carrier began, a condition of the delivery of the goods to' the *361plaintiff'; that was a matter between the party fiumishing the storage and the plaintiff, and the fact that the defendant may have paid such charge in the regular course of business did not give it a lien upon the plaintiff’s goods for that amount. It is not claimed that it had any such power under any statute, and the contract, as we have seen, does not pretend to give a lien where the carrier, or its connecting carrier, elects to store the goods itself in lieu of a personal delivery to the consignee. The contract provision is a privilege relieving it of its strict common-law obligations as a common carrier, and it cannot be stretched into an agreement for a lien upon the property, although the person for whose benefit the storage is made may be liable for the reasonable charges.
If we are right in this position, and if the plaintiff was entitled to the delivery of its goods upon the payment of the freight charges from Covington to Troy, it follows, of course, that the subsequent claim for demurrage, arising from the failure of the plaintiff to take the goods and pay the demand of the defendant for the thirty-eight dollars storage charges, is without merit, and gives the defendant no rights. It might be, of course, that the defendant, as the assignee of a “ reasonable charge for storage,” could have interposed such claim as a counterclaim in the present action, but it does not allege any such condition; it stands upon the proposition that it had a right to demand the payment of demurrage charges as a condition of the delivery of the goods, and its claim for the substantial part of its alleged counterclaim is based upon demur-rage said to have accrued after the plaintiff had refused to pay the charge of thirty-eight dollars for demurrage while the goods were stored in Covington, and which can have no basis unless the defendant was justified in holding the goods pending the payment of such charge. Demurrage contemplates payment for the use of cars or vessels while being discharged of their freight, and not for their use as warehouses under a contract for a substituted delivery. “ Demurrage, in the proper sense of the term,” say the American and English Encyclopaedia of Law (Vol. 9 [2d ed.], p. 221), “is an allowance or compensation for the delay or detention of a vessel, expressly provided for in a charter party or bill of lading,” and the same *362authority says that under some circumstances the shipper or con, signee of goods over a railroad may become liable in damages under an express or implied contract for the detention of cars or other property belonging to the company, and the term “ demurrage ” is commonly applied to these damages. (Id. p. 223.) In Crommelin v. New York & Harlem R. R. Co. (4 Keyes, 90) the defendants had transported certain marble belonging to the plaintiff and to be delivered to him in New York. The marble arrived at its destination on the 11th day of October, 1860. The defendants proved that prior to this time they had given notice to the plaintiff that his freights must be removed within forty-eight hours after their arrival, or that one dollar a day for each car detained would be charged for such detention, and further proved that this was the general custom of the company. It was also proved that written notice was given the plaintiff of the arrival of the marble, calling attention to the demurrage charge which would be demanded for delay. The cars remained upon the track until the eighteenth of October, when the plaintiff paid the freight and demanded the marble. The defendants refused delivery except upon the payment of one dollar per day for each car detained beyond the first forty-eight hours, and this the plaintiff refused to pay, bringing an action in replevin. The court say: “The legal question here is, had the defendants a lien upon the marble for the delay in taking it, which justified their refusal to deliver it. That the defendants had a lien for the freight of the marble is not denied. The plaintiff conceded it and paid the amount before demanding the marble. The lien of an innkeeper or of a common carrier is well established. So the principle is well established generally that every bailee who bestows labor, care or skill upon an article entrusted to his possession may retain the article until the amount due to him for such care, labor or skill shall be paid. The watch repairer, the blacksmith and the tailor are the instances usually cited by way of illustration. On the other hand, A being stable-keeper or an agister of cattle, has no such lien. He -must deliver the horses or the cattle to the owner upon demand and seek his remedy upon his contract. * * * The character of a warehouseman, or any liability for its protection or storage, after forty-eight hours, was *363expressly disclaimed by the defendants in their notice of October 12th. It was never removed from the cars, but remained upon them in the public highway until after the plaintiff had demanded its delivery to him. The defendants insist that by the goods being left upon their cars, and by the delay of the plaintiff to remove them within forty-eight hours after their arrival, injury, inconvenience and expense was suffered by them. This is quite probable. It constitutes, however, a claim in the nature of demurrage, and does not fall within the principle of those transactions which" gives a lien upon the goods. It is a breach of contract simply, for which, as in case of a contract in reference to pilotage or port charges, the party must seek his redress in the ordinary manner.”
The case last above cited does not appear to have been questioned in the later decisions, and it certainly presents as strong a case for the assertion of a lien as that in the matter now before us, where the contract was clearly for a modification of the common-law obligation of the carrier in respect to the delivery of the goods at Covington, and the defendant having no lawful’ right to detain the plaintiff’s goods, after a tender of the freight, and the claim for reasonable storage charges not having been presented as such by the pleadings, we see no escape from the conclusion that the counterclaim was properly disallowed.
The judgment appealed from should be affirmed, with costs.
All concurred, Smith, P. J., in result, except Kellogg, J., dissenting in opinion, in which Lyon, J., concurred.