Under the statutes in force at the time of the commencement of this action the commissioners of emigration were public officers of the State government, whose powers and duties were strictly defined by law. As such officers they had no power to make any contract for the acceptance, safe keeping or return of the baggage of any person. The rules and regulations prescribed by them, pursuant to the authority conferred upon them by statute, for the landing of immigrants and their baggage, must be deemed to have been established for the general good and better protection of immigrants arriving at the port of New York; but if such rules and regulations have failed to protect the plaintiff, it is a misfortune, for which he has no remedy against the State or the commissioners in their official character, for the assumption by the government of control over such matters cannot be held to operate as a contract of general indemnity (Murphy v. Commissioners, &c., 28 N. Y., 134).
To enumerate the instances in which the commissioners, or any of them, might become individually liable, would, in the present case, be a work of supererogation. Nor is it necessary to discuss how far and under what circumstances the doctrine of respondeat superior should be applied to the several railroad companies who are represented at Castle Garden by the defendants ; the only question to be determined in this cáse being whether the verdict directed against the defendants named can be permitted to stand.
Passing over the questions arising from the change and substitution of parties, and the non-service of process upon two of the defendants, who were brought into court in a summary way, I shall at once proceed to examine whether, upon the proofs adduced in sup*350port of the allegations of the complaint, a personal liability has been established on the part of the defendants ; and for the purposes of such examination I will assume, without further inquiry, that in consequence of the manner in which they transacted their business at Castle Carden as the so-called railroad agency, they were personally responsible, to some extent at least, for the safety of baggage coming into their possession and belonging to immigrants who intended to remain in the city of Hew York.
By the complaint, defendants stand charged as carriers who, against plaintiff’s consent, had taken possession of his baggage and assumed the duty of safely carrying and keeping the same. Proof of a compulsory taking of the baggage from plaintiff’s possession by the defendants, and a refusal on their part to restore it, would consequently have been sufficient, without any proof of its subsequent fate, to enable plaintiff to recover. But plaintiff’s evidence wholly failed in this respect, for it showed that if there was any compulsory taking at all, it was done by Captain Hall, whose duty it was to convey the baggage to Castle Carden, and who, in the performance of such duty, acted under the regulations established by the commissioners, and not under any authority, express or implied, from defendants. If there was no compulsory taking, the action, being in the form of trover for a conversion, and not for a mere negligent loss, will not lie against a carrier or even a bailee, except upon proof of an absolute appropriation of the property by the carrier or bailee to his own use, or, what is equivalent, parting with it to others without authority from the owner (Devereux v. Barclay, 2 Barn. & Ald., 702 ; Stephenson v. Hart, 4 Bing., 476; Youl v. Harbottle, 1 Peake Cas., 49 ; Lubbock v. Inglis, 1 Stark., 104).
For mere negligent loss, the only forms of remedy formerly were, either a special action on the case for a *351breach of the public duty of carrying and delivering safely, or of assumpsit for a breach of the undertaking so to carry and deliver (Ross v. Johnson, 5 Burr., 2825; Anon., 2 Salk., 665).
In Tolano v. National Steam Navigation Co. (5 Robt., 318, 326), this was held by this court to constitute a substantial difference in the cause of action, which a plaintiff is bound to observe in the statement of facts constituting the complaint (Code, § 142, subd. 2), if he seek to recover for mere non-delivery or loss.
If this doctrine is sound law under our present practice, there was, at the time plaintiff rested his case, a total failure of proof as'regards the cause of action alleged in the complaint, and the motion for a nonsuit should have been-granted, especially as no motion was made by plaintiff for leave to amend.
But aside from this objection, which may be open to the criticism of being of a technical nature, the evidence appears to be altogether insufficient to fasten any liability upon the defendants. If, in consequence of the manner in which, and the circumstances under which, they transacted their business at Castle Garden, they are to be considered as bailees without hire of the city baggage of immigrants, they can be held liable only upon proof of want of ordinary care in keeping it or of an actual subsequent appropriation of it to their own use. But in either case, it is absolutely necessary to establish, as the foundation of the liability, and by competent proof in the first instance, that the baggage came into their possession for the purpose of being kept by them subject to the call of the owner. Upon this point, the evidence shows that the plaintiff saw the missing box checked by some person unknown to him, on board of the vessel, on which he arrived, and that he received a check therefor. But he was unable to state whether or not the check thus received was a duplicate of the strap-check, which he saw at*352tached to the box. There was also some evidence which had a tendency to show that a mistake occurred in the checking of this box. Plaintiff testified that he saw all his pieces landed by a lighter (commanded by Captain Hall) upon a wharf inside of Castle Garden, over which it appeared the commissioners of emigration had control, and to which all their employees, who were quite numerous, as well as the defendants, had free access; but that he did not count his pieces after they had been discharged from the lighter, although he was positive that, all the large boxes and trunks (which included the box in question) went into Castle Garden. Edward Murphy, called as a witness on the part of plaintiff, testified that he was employed by the railroad agency as baggage master, and, as such, had charge of the whole baggage, which included railroad as well as city baggage; that he presumed that he was on the wharf when the baggage came in from the vessel, on which plaintiff had arrived, but that he never saw the plaintiff’s missing box. It also appeared that plaintiff did not discover his loss for ten or twelve days. All these facts, taken and weighed together, and considered in connection with the Castle Garden regulations, so far as they were made to appear, fall very much short of establishing that there was, in point of fact, such a delivery by Captain Hall to the defendants, and an acceptance on their part, of the box in question as is necessary for the creation of a legal liability founded thereon.
Defendant’s exceptions to the refusal of the court to dismiss the complaint, and to the direction of the verdict should be sustained, and a new trial ordered with costs to the defendants to abide the event.
Present, Monell, McCunn, and Freedman, JJ.