#### Isaac Nebenzahl, Respondent, *against*James C. Fargo, as President, &c., Appellant.

(Decided February 4th, 1889).

A common carrier who delivers goods to an alleged agent of the con- ■ signee must show the authority of the agent to receive them, if that is disputed; and evidence that the person receiving the goods was behind the counter in the consignee’s store is not sufficient, where such person receipted for the goods in his own name, and the consignee' denies having purchased the goods or having given any one authority to receive them.

Appeal from a judgment of the District Court in the City of New York for the Ninth Judicial District.

The action was brought to recover damages for the loss, through the alleged negligence of defendan as carrier, of a certain package of goods consigned by plaintiff. The facts are stated in the opinion.

*Hamilton*Cole, for appellant.

*Klebisch*Marks, for respondent.

*131Per Curiam.

[Present, Larremore, Ch. J., Allen and Bookstaver, JJ.].—The plaintiff delivered to the defendants, an express company, a package addressed to Mrs. C. P. Frankel, Saugerties, N. Y., which they agreed to carry and safely deliver to her. The package was tendered by the defendants to Mrs. Frankel at her place of business in Saugerties, and she refused to receive the same'or pay the expressage thereon, on the ground that she had not authorized the purchase of it. Afterwards a daughter of Mrs. Frankel went to defendant’s office at Saugerties and directed that the package be sent to her mother’s place of business; but it is not shown that this was done bjr the authority of the mother. The defendants thereupon delivered the package at Mrs. Frankel’s place of business to one Warschofsky, without making any inquiry as to whether he was authorized to receive it for Mrs. Frankel; he receipted for it in his own name and not in hers. There is no evidence that Warschofsky was Mrs. Frankel’s agent for that purpose, or that he was authorized to receive it for her; nor is there any evidence that he was in the store by Mrs. Fraukel’s authority. Nor are there facts and circumstances shown from which the court was bound to infer that he was her agent. Where a common carrier deliver goods to a stranger without requiring evidence of identity, it is liable to the consignor for their value *(Price*v. *Oswego & Syracuse R. Co.,*50 N. Y. 213). It is bound to delivers the goods to the consignee or his agent, and if to the agent, it must be prepared to show the authority of the agent to receive them, if that is disputed *(Whitbeck*v. *Holland,*45 N. Y. 18). It was in this case, and the justice was fully justified by the evidence in arriving at the conclusion he did upon that subject.

The judgment must therefore be affirmed, with costs.

On a motion by defendant for leave to appeal to the Court of Appeals, the following opinion was delivered, April 1st, 1889.

Per Curiam.

[Present, Larremore, Ch. J., Allen and Bookstaver, JJ.].—It is not necessary to allow an appeal *132to the Court of Appeals for the purpose of obtaining the views of that court as to whether the fact that a man is behind the counter in a store, apparently doing the work of a clerk in the regular course of business, is not evidence that that man is in the employ of the owner of the store. There can be no doubt as to the opinion of the Court of Appeals on that subject *(Leslie*v. *Knickerbocker Ins. Co.,*63 N. Y. 27; *Svenson*v. *Pacific M. S. S. Co.,*57 N. Y. 108).

The district court, and the former General Term of this court, were of the opinion that the inference to be drawn from the presence of Warschofsky behind the counter of Mrs. Frankel’s store (which for aught that appears to the contrary was without the knowledge or consent of Mrs. Frankel, and merely a momentary and accidental occurrence), was not sufficient to overthrow Mrs. Frankel’s denial that she ever purchased the goods, or that she ever gave to anyone authority to receive them. It was also proved that Mrs. Frankel refused to take the goods when they were tendered to her, and that Warschofsky signed the receipt to the express company in his own name, and not' in the name of Mrs. Frankel; showing that he did not profess to act as her agent.

It was not that no force or consideration was given to the presumption arising from the presence of Warschofsky behind the counter of Mrs. Frankel’s store, but for the reason that the presumption was rebutted and overcome, that. judgment against the express company was given.

Leave to go to the Court of Appeals denied.