This action between common carriers is brought under section 20 of the Interstate Commerce Act by the initial carrier to recover $581.81 paid by plaintiff in satisfaction of a judgment recovered against it by a shipper for loss of property in transit. The complaint was dismissed as against the New York Central railroad and judgment directed against the Panama Bailroad 'Company, which appeals. The plaintiff also appeals from so much of the judgment as *24dismissed the complaint against the Hew York CentralBailroad Company, claiming that it was entitled to judgment against both defendants. The complaint alleged that the. loss of the merchandise was caused by the negligence of both defendants as well as by their failure to perform the contract of carriage. The goods having arrived at the freight station of the Hew York Central Bailroad Company, that company sent to the Panama railroad a written notice of arrival, which was turned over by the Panama railroad to its truckman Haring, the only truckman then in its employ for the particular kind of work involved. This notice of arrival showed certain freight charges unpaid, and it was indorsed: “Deliver to Panama Line upon payment of charges, Walter B. Pollock, Mgr. F. F. Dept. B.” In accordance with a well-defined and customary course of dealing between the two defendant carriers, Haring stamped the arrival notice and gave it with the money for the freight bill to an employee who presented it to the Hew York Central’s cashier from whom he obtained a receipted bill. On the following day the delivery clerk in the employ of the Hew York Central, as was the custom between the carriers, delivered the goods to some one who exhibited the receipted freight bill issued the day before by the cashier’s office. The person who received these- goods signed a delivery receipt for the same, signing his name as “ Frank Wilson.’’ Haring testified that he had in his employ no person of that name. That was the last heard of the goods. The position of the Hew York Central is that, whether or not the person to whom it delivered the goods was in fact the authorized agent of the Panama Bailroad Company, the delivery was made in accordance with a valid, existing and long-continued custom between the two *25railroads, under which the bearer of the receipted freight bill issued upon the surrender of the arrival, notice was to be entitled to receive the goods; and that if in this particular case the person who presented the receipted freight bill had no authority to do so it remained for the Panama railroad to explain how such person obtained possession of the receipted freight bill; that, as there is an entire absence of such explanation, the Panama railroad must be held responsible for having brought about a situation whereby the New York Central innocently delivered the goods to some one who was not in fact authorized to receive them. This contention must rest upon the custom, for it is the well-recognized duty of a common i carrier to deliver the goods to the proper person, and \ it fails to do so at its peril, whether a delivery to the. I wrong person is made because of an innocent mistake 1 on the part of the carrier or by reason of the fraud of ' some third party. But, as between the plaintiff and the New York Central, any local custom between the latter company and the Panama railroad has no force. This is not a litigation between the two railroads, but 1 is an action by an initial carrier, which had no knowledge of any such custom of the intermediate carriers in making deliveries- to one another, and therefore could not be bound or in any way prejudiced by any such local custom. It appearing that the New York, ¡ Central delivered the goods to a-party who was not ; entitled to them, it is liable to the plaintiff irrespective j of any custom that might give it a claim against the/j Panama railroad. Therefore, error was committed in dismissing the complaint as against the New York Central Bailroad Company. The Panama Bailroad Company was properly held liable, for its negligence concurred in causing the New York Central to make a *26misdelivery. This result was brought about by the failure of the Panama railroad to retain possession of the paid freight bill. A presumption arises that it was lost through the Panama Bailroad Company’s negligence, just as in all cases where a bailee or carrier loses goods in its custody. This presumption was in no way rebutted, and the direction of a verdict against the Panama Bailroad Company was right.
The judgment against the Panama Bailroad Company is affirmed. The judgment in favor of the defendant New York Central Bailroad Company is reversed and a judgment for the sum of $741.05 is directed to be entered in favor of the plaintiff and against said defendant, with costs of appeal to the plaintiff.
Guy and Bijur, JJ., concur.
Judgment against Panama Bailroad Company affirmed. Judgment in favor of defendant New York Central Bailroad Company reversed.