(90 Hun, 554.)

#### WYNANTSKILL KNITTING CO. v. MURRAY et al.

(Supreme Court, General Term, Third Department.

December 3, 1895.)

1. Carriers op Goods—Negligence op Consignee.

Where the consignee, after being notified, on Saturday afternoon, of the delivery of the shipment of cotton on the dock, allows part of it to remain there until the following Wednesday afternoon, when it is destroyed by fire, the carrier, as a matter of law, is not liable as a common carrier for its loss.

2. Same—Delivery of a Consignment in Two Parcels.

The fact that the carrier had not unloaded a portion of the consignment, due to the fact that it was in the hold of the vessel, surrounded by other freight, does not affect its liability, the consignee having commenced to take away the part unloaded, without objection to the cotton being delivered in two parcels.

3. Pleading and Proof.

In an action against a carrier for loss of the goods shipped, after they were unloaded, and plaintiff notified of their arrival, based on its liability as a common carrier, instructions as to its liability as a warehouseman ' are properly refused, no claim being made in the complaint against defendant as a warehouseman.

Appeal from circuit court, Rensselaer county.

Action by the Wynantskill Knitting Company against Edward P. Murray and another. From a judgment for defendants, entered on a verdict, and from an order denying plaintiff’s motion for a new trial, plaintiff appeals.

Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Martin & Kelly (Clin A. Martin, of counsel), for appellant.

Townsend, Roche & Nason (William J. Roche, of counsel), for respondents.

PUTNAM, J.

This is an appeal from a judgment entered in the Rensselaer county clerk’s office on November 20, 1894, upon a verdict of a jury, and from an order denying the plaintiff’s motion for a new trial. The following facts may be deemed established by the verdict of the jury: On Wednesday, the 6th day of July, 1892, a barge belonging to defendants left the city of New York with 100 *27bales of cotton, owned by the plaintiff, which were shipped to it at the city of-Troy. The barge arrived at Troy, reaching the dock at the foot of State street, where the defendants conduct their business, on the morning of Saturday, July 9th. The work of unloading the barge was commenced at 7 o’clock, and the deck load of 71 bales of cotton, consigned to plaintiff, was unloaded before 12 o’clock of that day. On the evening of the 8th the defendants made out and deposited in a post-office box a postal card, addressed to plaintiff, notifying the company that the 100 bales of cotton were ready for delivery. The plaintiff’s president received this postal card on Saturday, and at once notified the teamster employed by plaintiff to go and get the cotton. Defendants’ witnesses say that the first was taken away on Saturday afternoon. It is not denied by plaintiff that some of the cotton was drawn away before Wednesday, the 13th day of July. On the afternoon of that day a fire broke out in the cotton, and 36 bales were damaged or destroyed. Twenty-nine bales of the cotton had been placed in the hold of the defendants’ barge in New York, and other freight was placed around them, and they were not-unloaded at the time the 71 bales were delivered. When the defendants’ freight, including the 71 bales of cotton, was removed, the barge left the dock to deliver other freight, and the 29 bales were taken along. It returned to defendants’ dock about noon on Wednesday, the 13th. Before these 29 bales could be unloaded, the fire broke out in the cotton on the wharf. Those bales were, therefore, taken back to New York, plaintiff consenting, and subsequently taken back to Troy, and accepted by plaintiff. No claim with reference to them is made in the complaint or was asserted on the trial.

The action was brought against the defendants as common carriers. No claim is made in the complaint or was asserted on the trial against them as warehousemen. Their duty as common carriers by water was, not only to convey the cotton to the port of destination, but to deliver it there to the consignee. Such delivery could be either actual or constructive. There was a constructive delivery, if the defendants unloaded the cotton at the wharf at Troy, and notified plaintiff, after the lapse of a reasonable time for its removal by the latter. Tarbell v. Shipping Co., 110 N. Y. 171, 17 N. E. 721. It was the duty of plaintiff, on receiving such notice, to at once and with diligence proceed to remove the cotton. Tarbell v. Shipping Co., supra; Hedges v. Railroad Co., 49 N. Y. 223. The cotton remained at the risk of the defendants until after the lapse of a reasonable time for the consignee to remove it. After the expiration of such time, the liability of the defendants as common carriers ceased, and, if in any way responsible, they were only so as warehousemen. The defendants had no right to place the cotton in a warehouse for the plaintiff until the latter had a reasonable time to remove it. Redmond v. Steamboat Co., 46 N. Y. 578-583. It has been held that what is a reasonable time in which to remove goods by the consignee, after the same are unloaded at a wharf, and notice given, where there is no dispute as to the facts, is ordinarily a question of law, to be passed on by the court. Hedges v. Rail*28road Co., supra.; Wright v. Bank, 110 N. Y. 237-249, 18 N. E. 79; Colt v. Owens, 90 N. Y. 368. These authorities do not conflict with Scheu v. Benedict, 116 N. Y. 510, 22 N. E. 1073, and other cases, which hold that, under certain circumstances, the question of reasonable diligence in removing goods after their arrival should be ■submitted to the jury as a question .of fact.

On the evidence in this case, the jury were authorized to find that, -on Saturday, the 9th of July, plaintiff received the notice sent by defendants of the arrival of the cotton; that it was unloaded on that day by noon, and plaintiff commenced drawing it away; that it was not damaged or destroyed by flee until the afternoon of the following Wednesday. We think, under doctrines established in the cases cited above, the court did not err in instructing the jury that, if they found the cotton was delivered on the dock at Troy on the morning of Saturday, July 9th, and plaintiff received the postal card notifying them of its arrival on that day, the liability of defendants as common carriers ceased before the fire on the following Wednesday, and they were only liable thereafter, if at all, as warehousemen, and in declining to charge, as requested by plaintiff, that “the question whether the cotton was taken awray by the plaintiff within a reasonable time is one, under the circumstances ■of the case, for the jury to pass upon.” If the plaintiff had notice ■of the arrival of the cotton on Saturday, the 9th, and allowed it to remain on the dock until the afternoon of the following Wednesday, It failed to act promptly and with reasonable diligence, and defendants ceased to be liable as common carriers. Hedges v. Railroad Co., supra; Tarbell v. Shipping Co., supra. And it was for the court, under the circumstances, to determine the question as to the reasonable diligence of plaintiff in removing the goods. In the case of Hedges v. Railroad Co., the action was brought against the defendant, as common cárrier, to recover for a portion of a car load •of paper destroyed by fife. The plaintiffs had notice of the arrival of the paper on the morning of the 24th' of May, and removed one load, and the balance was burned the same night. In his opinion Judge Polger remarked:

> “We do not perceive that there is here any dispute as to the material facts. It is certain that, with three or four trucks, all the paper could easily have been hauled away, before the close of defendant’s business on the day on which one load was taken with one truck. It is certain, too, that, with the one truck of their own, two loads could have been received by the plaintiffs from the defendant on that day. So that it was a question of law for the •court whether it was unreasonable for the plaintiffs to employ but one truck, or, if reasonable to employ but one truck, whether it was reasonable to send it but once for paper that day. The learned trial judge left the question for the jury. In this we think he erred.”

In this case it is clear that the plaintiff could, with reasonable diligence, have removed the cotton, during the three days that elapsed after it received notice of its arrival before the fire, and, under the authorities cited, the court was authorized to determine the question as to its reasonable diligence.

The trial court was not called upon to charge, as requested by plaintiff, that, before the character of defendants as common car*29riers could change to that of warehousemen, they must warehouse the freight. As we have seen, there was no claim in the complaint against defendants as warehousemen. The only question before the court was whether the defendants were liable as common carriers, and on the subject of such liability it had given the jury all the instruction necessary, in a clear, full, and fair charge. The liability of defendants was not affected in any way by the fact that 29 of the 100 bales of cotton it had undertaken to transport had not been unloaded at the time of the fire. No negligence is claimed on the part of defendants in not unloading these bales at the same time they delivered the deck load of cotton. . It appears that the 29 bales were in the hold of the barge, surrounded by other freight, and could not be delivered until such freight was removed. Under the circumstances, we think the defendants had the right to deliver the cotton in the way they did. On the delivery of the 71 bales, plaintiff commenced taking it away, and it does not appear that it made any objection to the cotton being delivered in two parcelsr afterwards accepting the 29 bales.

We think the case was fairly submitted to the jury by the learned trial judge, that no errors were committed, and that the judgment should be affirmed, with costs.

MAYHAM, P. J., concurs. HERRICK, J., concurs in result.