Leo v. Cornell Steamboat Co.

FREEDMAN, P. J.

On or about December 29th the plaintiff’s canal boat was lying at Sing Sing, on the Hudson river. Being desirous of being towed from there to Weehawken, the captain of the boat telephoned to the office of the defendant and asked that a tug boat be sent to tow him down. He received a reply saying, “We will attend to yOu.” “We will have you out of there.” The next day the plaintiff himself went to the office of the defendant and asked to have his boat “got out from there as quick as they could,” and was told “they would get her out as soon as they could.” Plaintiff further testified :

“I went the second time, and the young man told me there was a boat up the river and she would go in and get him out of there; so I went the third time, and he would not talk to me at all about the matter. Then I went out and. hired a special tug, and went up after the boat myself.”

From this testimony the trial judge evidently found, and correctly, that the defendant agreed to tow plaintiff’s boat from Sing Sing to Weehawken within a reasonable time. What was a reasonable time was a question of fact to be determined from all the circumstances as shown by the testimony and the legitimate inferences that might be drawn therefrom.

The defendant introduced testimony tending to show that the conditions of the river at that time of the year rendered navigation very dangerous, heavy ice running in the channels, and the flats being frozen, but it did not show that it made the slightest effort to get the canal boat, and there is no dispute but that the tug finally engaged by the plaintiff on January 8, 1903, towed plaintiff’s boat to her destination, after the defendant had practically abandoned the contract. There was also testimony on the part of the captain' of plaintiff’s boat at the time to the effect that, during the'time between his notification to defendant and the time he was actually towed down the river, the river was open, and that boats were being towed across it. The court below was justified in holding that the defendant had absolutely *1075refused to attempt the towing, and also in holding that the defendant was not prevented from performance by excusable conditions.

The boat discharged of her cargo on December 29th, and was towed to Weehawken on January 8th, a period of ten days having elapsed between her being discharged and being taken from Sing Sing. The defendant made no attempt to show that less than eight days had elapsed from the time the captain telephoned to defendant and the time she left for Weehawken. Plaintiff’s bill of particulars filed herein makes claim, and there was no evidence disputing it, and the court below allowed, for loss of eight days’ use of the boat. The criticism of the appellant that the judgment is unreasonable as to that charge is therefore unfounded.

Judgment affirmed, with costs. All concur.