The plaintiff sets forth in Ms complaint that the goods in question were delivered to, and received by, the defendants, tobe kept and conveyed as freight to some place on the line of the railroad, to be afterwards designated by him; and that he directed the defendants to carry such goods to Yonkers. The plaintiff did not deliver the goods in person, but sent them to the depot by a cartman. The cartman testified that he saw no one at the depot, when he left the goods *385there, but that on the afternoon of the same day he saw the goods in the stoop where he had left them, and then told a man whom he saw there to put them in the freight house and that “ the plaintiff would be down and order where they should go.” And that he afterwards saw Mr. Russell, the freight agent, and told him that the plaintiff would be down and order where the goods were to go. The plaintiff had previously intimated a wish to Mr. Russell that they should be forwarded to Yonkers, but not in very decided terms ; and the subsequent direction communicated by the person to whom he intrusted the transportation of bis property to the said road, was the only one which it would have been safe or proper for the company to follow. There is no proof that the plaintiff ever gave any subsequent direction to transport his goods to Yonkers, and therefore the defendants were not in default for not conveying them to that place.
The goods were simply deposited with the defendants. The plaintiff was of course entitled to them on paying or tendering to the company a reasonable compensation, and making a demand of the proper officer. He did obtain a portion of them, but to what extent does not appear. As ho took them without any permission of the company, or the presence of any one in their behalf, he is bound to show what they, were, before calling upon a jury or referee to decide what was retained, or that any were retained. When he took what he had abstracted from the chests, to the cartman, he said he had a few more which he would like to have the cartman bring up, but there is no evidence that any were in possession of the defendants when he made his final demand. The proof as to the quantity or value of the goods taken away, was very defective.
The complaint does not set forth any distinct claim for the non-delivery of the property to the plaintiff. The demand and refusal stated have reference to the failure of the defendants to comply with their obligation as common carriers, and the consequent injury. If the plaintiff relied at all upon a demand and" refusal of the goods, there was none proved, as it was not shown that the person upon whom a demand was made, was the proper *386agent of the defendants, or indeed an agent at all, except by hearsay evidence, which was objected to and was not competent'.
[Kings General Term, October 3, 1853.Barculo, Brown and S. B. Strong, Justices.]
The judgment at special term should be reversed, and the report of the referee set aside, costs to abide the event.