#### Lewis Abrams, Respondent, *v.*Thomas C. Platt, as President of the United States Express Company, Appellant.

(Supreme Court, Appellate Term,

June, 1898.)

Common carriers — Delivery to the carrier.

In an action where the issue was whether the plaintiff had delivered certain goods to the defendant, an express company, it ■ appeared that he was a regular customer, furnished with a placard which he exposed when he wished an express wagon to call and also with a book of blank receipts. After the plaintiff had exhibited his placard on a certain day, a stranger, who had the name of the company inscribed on a shield on his cap, came in the store while there was, on the other side of the street, “ a sort of yellow wagon ” on which the company’s name-appeared, signed a receipt and took away the goods. It did not appear that he came from or returned to the wagon, nor was it shown who owned the wagon. The company repudiated the whole transaction,, including the name of the -alleged agent as signed in the book.

Held, that no delivery was made out.

Appeal from a judgment rendered in favor of the plaintiff in the Municipal Oourt of the Gity of. ¡New York, borough of Manhattan, ninth district.

Francis G. Kimball, for appellant.

Joseph A. Davis, for respondent.

Beekman, P. J.

The plaintiff sues to recover the value of certain goods, which he alleges were received by the defendant’s company for transportation, but never delivered. The only issue in the case is whether the property was ever so received by the defendant, and upon this the trial justice found in favor of the plaintiff and awarded judgment accordingly.

After a careful consideration of the question, we are of the opinion that the evidence was insufficient to support such a finding. The plaintiff showed that he was ¡a regular customer of the defendant’s company, and had been supplied by it with a card intended to be placed outside of his store as a notice to the company that he re*638quired its services whenever such was the case. He had also- received from it a book containing a large number of shipping receipts in-blank, bearing upon them in printed form the company’s name and the conditions upon which goods would he received and carried by it.' Whenever the plaintiff desired to make a shipment through the company he would display the card, and when the company responded through its agent, the latter would receive the goods and at the same time would sigh one of -the blanks, properly filled out, which were contained in the receipt-book (above mentioned. This book at all times remained in the possession of the plaintiff.

It' appears that on the 14th day of April, 1897, the plaintiff, having a shipment to make, exhibited his card, and apparently in response to the call thus made, a man entered his store, received the packages from the shipping clerk, signed one of the ..receipts in the book and took the goods away. The clerk says he had a shield on his cap inscribed '“United States ¿Express Ob.” and that on the •other side of the street there was “a sort of a yellow wagon” on which the company’s name appeared. He did not, however,. see the man come from the wagon referred to or return to it, nor did he •observe what he did after he left the store with the goods. Upon his examination he gave the following testimony: “Q. Do you know the man to whom you delivered the goods? A/Ho, sir. • Q. You had never seen him before? A. I don’t remember. Q. There are new men all the time? A. Once in a while their steady man is not on, and they put a different man on. Q. They are changing all the time?- A. Hot all the time. Q. Sometimes they have strange men? A. Yes, sir. . Q. Have any men called for ' United- States packages that month other than the steady man? A. Ho, sir.”

This is all the proof that was given on the- part of the plaintiff to establish a delivery of the goods ¡to the defendant’s company. A motion to dismiss the complaint having been denied, the defendant offered proof tending to show that, it had never deceived or transported any such goods; that on the day in question the only men in their employment covering the route which included plaintiff’s store were four of their “ steady ” men, none of whom bore the name signed to the receipts, and that there was ta.o such person in their .employ bearing.that name.

Taking the evidence as a whole, we do not .think that the plaintiff established a delivery to the company. The burden rested upon him of showing by a preponderance of proof that the person as-*639sinning to act for the company was its agent, or that the company was in some way chargeable with responsibility for his acts. As was said in the case of Cronkite v. Wells, 32 N. Y. 247, “As there must be an actual delivery to the carrier, or to some person authorized to act in his behalf, before his responsibility as such commences, of course it was incumbent upon the plaintiffs to> show a delivery of the package to the defendants, or to someone authorized to receive it on their behalf, before they could be charged with the loss.”

At the outset it may be taken to be well-settled law that the extra-judicial declaration of a person that he is the agent of another is not competent evidence of the fact.. Stringham v. St. Nicholas Ins. Co., 4 Abb. Ct. App. Dec. 315, 320. The existence of the •relation must be established by direct proof or by circumstantial ■evidence tending to connect the alleged principal with the person assuming to act for him of such probative force as to fairly exclude any other reasonable hypothesis than that the relation actually ■ existed. In the latter class of cases the ultimate fact rests upon presumption, and the question in each case necessarily is: Are the facts expressly proven sufficient to support such a presumption? We are unable to find that such is the case here. There is not a single fact in evidence tending to sustain or in any way justify such a conclusion. The alleged agent was an utter stranger to the plaintiff, and bad never before assumed to act for the defendant. He had, it is true, a badge upon his cap with defendant’s name upon it, but there is nothing in the case from which the slightest inference can be drawn that he received it from the defendant: It is also true that a wagon with defendant’s name-on it was seen on the street at the time, but there is no proof either that it belonged to the defendant or was under its control or that the alleged agent came from it or returned to it or had anything whatsoever to do with it. He did not even produce the defendant’s form of receipt, but as we have seen, signed one which the plaintiff had' in his own possession. There is, therefore, nothing to show that he was invested 'by the defendant with any indicia of authority.

In the case of Hughes v. N. Y. *&*N. H. R. R. Co., 36 N. Y. Supr. Ct. 222, the evidence showed that the person, claimed to be the servant of the defendant, was upon one of its trains, wearing a brakeman’s cap and ¡performing certain duties in connection with the operation-of the train in association with the engineer, conductor and other persons who were engaged in its management. *640The court held that this was sufficient to support a presumption that he was a servant of the defendant. In Norris v. Kohler, 41 N. Y. 42, where the plaintiff sued to recover damages for injuries arising from the negligence of a person who was driving a wagon, it was held" that proof of defendant’s ownership of the horse and wagon would support a presumption that the driver was his servant. In the case of Svenson v. Atlantic Mail Steamship Co., 57 N. Y. 108, it was also held that proof of the ownership and control and management hy the defendant of a steamship was *prima facie*evidence that a person working thereon was in its employ. At page 111 of the report the court say: *“*A mere admission of ownership would not have been significant, hut the admission, that at the time the def endant controlled and managed the vessel, unexplained, leads inevitably to the conclusion, that those who were then employed upon her were the servants of the defendant.”

The distinction between these cases and the one at bar is obvious. In each there was evidence -showing that the alleged agent was working with or upon the property of the defendant under cir-cumst'ances from which it might reasonably be inferred that he was so doing with the defendant’s authority. Mo such elements exist in the case at bar, and the trial justice should have granted the motion which was made at the close of th'e plaintiff’s case to dismiss the complaint. The proof that was subsequently given hy the defendant not only in no Way supplemented the weakness! of the plaintiff’s case, but served to dispel the slightest doubt which might have existed upon the subject; so that at the close of the entire -case there was an utter failure of proof that the goods in question had ever been received hy the defendant’s company. The plaintiff was undoubtedly the victim of an ingenious fraud, but that is his misfortune for which the defendant is in no way legally responsible. The trial justice, therefore, erred in awarding judgment for the plaintiff, and for this error there must he a reversal.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the' event.

(JlLBEBSLEEVE and GrIEGEBICH, JJ., concur'.

Judgment reversed and new trial ordered, with costs to appellant to abide event.