#### James B. Ryer et al., Appellants, *v.*The Pennsylvania Railroad Co., Respondent.

(Supreme Court, Appellate Term,

March, 1899.)

Principal and agent — Common carrier as agent of consignee to recover possession of goods shipped.

Where a consignor, seeking to prevent the delivery to a consignee of goods shipped over the lines of more than one carrier, constitutes the first carrier his agent to procure the return of the goods and it *716agrees “ to see that the goods were returned if found ”, the consignor cannot recover damages of the first carrier because, after the goods had passed into the possession of a second carrier, the first carrier was only able to return a part of the goods, of which part some were damaged, there being no proof of negligence or of any lack of diligence in the manner in which the first carrier performed its agency.

Ryer v. Pennsylvania R. R. Co., 25 Misc. Rep. 289, affirmed.

Appeal from a judgment of the General Term of the City Court, reversing a judgment entered upon a verdict for plaintiffs directed by the court at Trial Term, and dismissing the complaint.

Campbell *&*Murphy (Herbert H. Walker, of counsel), for appellants.

Robinson, Biddle & Ward (Henry Galbraith Ward, of counsel), for respondent.

MacLean, J.

It was alleged in the complaint that in 1889 the plaintiffs delivered to the defendant, a common carrier, certain merchandise to be delivered to a furniture company at Fort Scott, Kansas; that before the delivery of the goods to the consignee, plaintiffs instructed the defendant to return the goods, which defendant undertook to do, receiving payment for such shipment and return, but it neglected to return or deliver the goods mentioned. In its answer, the defendant admitted receipt of the goods as common carrier and said that after the goods were delivered by the defendant to another company at some point in the state of Illinois, the defendant was notified to return the same to the plaintiffs, and subsequently did return certain of the goods, which- were accepted by the plaintiffs, but it denied any agreement or undertaking safely to transport the goods on the return, and also any negligence on its part. An employee of the plaintiffs testified that he went to the office of the defendant, there requested the return of the goods, was asked to make out an application, which he did, and was told “ that they would see that the goods were returned if found.” The application, offered in evidence by the defendant and admitted by the plaintiffs’ counsel, was a request to use all available means to stop the articles before delivery to the consignee and return them to the plaintiffs. It closed with: “The full mean*717ing and intent of this agreement being that yon are to act as our agent in this transaction.” Under this application, the defendant company procured the return of certain merchandise, which was offered and delivered to the plaintiffs, who claimed that less than the original shipment was returned, and that part of it was damaged, hut there was no evidence showing or tending to show that more goods had been found, or to show negligence or lack of diligence on the part of the defendant, whose special services the plaintiffs had requested when they employed it as their agent.

The judgment of the General Term should he affirmed, with costs.

Freed mak, J., concurs; Levektritt, J., concurs in result.

Judgment affirmed, with costs.