In April, 1844, the canal boat Jay, owned by the plaintiffs, and freighted with merchandise, was taken in tow at the city of New York by the steamboat San-dusky, owned by the defendants, under permit obtained by the master of the canal boat from the defendants’ agent, of which the following is a copy:
“New Yoke, April 24, 1844.
“'Captain Young, of steamboat Sandusky — Take in *133tow for Albany, canal boat Jay,-, master, at the risk of the master and owners thereof, and collect $35.
“ For owners, E. Dennis.”
The Jay was taken in' tow accordingly, and sunk on the river before reaching Albany. This action was brought to recover damages for the loss, alleging that it occurred through the negligence of the defendants and their agents. The defendants pleaded the general issue.
On the trial, the plaintiffs gave evidence tending to show negligence on the part of the managers of the steamboat. The defendants’ counsel requested the judge to charge the jury, that the defendants were not liable for mere gross negligence, and that the plaintiffs could not recover without showing fraud, or want of good faith in those having charge of the Sandusky. The judge refused so to charge, and the defendants’ counsel excepted. The plaintiffs obtained judgment, and the defendants appealed to this court.
Held, that the contract did not excuse the defendants from liability for damages resulting from the gross negligence of themselves or their servants; that the judge did right in refusing to charge as requested, and the judgment was affirmed.
(S. C., 2 N. Y. 304; 8 id. 375.)