#### HOWELL v. GRAND TRUNK RY. CO. OF CANADA. SUTTERBY v. SAME.

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

1. Carriers—Baggage oe Passenger—Stop-Over Check.

Plaintiff purchased a ticket from defendant railway company, and obtained leave to stop over until next day at an intermediate station. He also requested that his baggage be unloaded there, but this was not assented to, and it was carried through to the point of destination named in the ticket, where it was taken charge of, pursuant to law, by the customs officers of the United States, and while in their custody was destroyed by fire. *Held,*that defendant was not liable for its loss.

2. Pleading—Amendment on Appeal.

Where a variance between the complaint and the evidence was objected to by defendant on the trial, plaintiff cannot, on appeal, for the purpose of reversing a judgment for defendant, have leave to amend the complaint to conform to the proof.

Appeal from judgment on report of referee.

Actions by Harmon H. Howell against the Grand Trunk Railway Company of Canada, and by John Sutterby against the same defendant. From a judgment in favor of defendant in each case, plaintiffs appeal.

Affirmed.

Argued before LEWIS, BRADLEY, WARD, and ADAMS, JL

Dilworth M. Silver, for appellants.

George F. Brownell, for respondent.

BRADLEY, J.

On January 2, 1883, the plaintiff in each of the actions purchased at Blythe, Canada, a ticket for passage over the defendant’s railroad from that place to Suspension Bridge, N. Y., and delivered to the defendant his baggage to be carried to the same destination. The baggage was transported to the latter place, and on the night of that day was destroyed by fire. On its arrival there, the baggage was taken into the possession of the customs officers of the United States, pursuant to the statute and regulations of that government relating to customs, and remained in the possession and custody of those officers, in the room appropriated to such purpose, at the time of the loss by Are, which destroyed the building in which the baggage then was. The property was not in the possession or under the control of the defendant at the time of the loss; nor was it in any sense the fault of the defendant that it was not so. On the arrival from Canada into the state of New York, it was taken into the possession of such custom officers, as was usual and required by the customs and navigation laws of the United States and the regulations adopted by the secretary of the treasury pursuant to such laws. The defendant, therefore, is not liable as a common carrier for the loss, unless it may for some cause be attributable to its negligence. It is not claimed that the Are was chargeable to any fault on its part. The depot building to which the baggage was transferred, and in which was the customs room, was the property of the New York Central & Hudson River Railroad Company, to which the defendant had the right of trackage.

*545It, however, is urged by the plaintiffs’ counsel that the defendant became liable by reason of its failure to observe the directions of the plaintiffs to take the baggage from the train at the intermediate station known as “London,” where they stopped off over night. When they purchased their tickets, at Blythe, the plaintiffs intended to stop over night at London, and go forward the next day to Suspension Bridge, which they were permitted to do. They testified, and the referee, on the requests made on their behalf, respectively found, that they told the defendant’s agent at Blythe to check the baggage to London, which he failed to do, but checked it through to Suspension Bridge, and that, on the arrival at London, they requested the defendant’s agents and employés to take that baggage from the train, which was refused. The agent at Blythe did not promise or consent to check the baggage to London, but checked it to the place of destination of the plaintiffs, as represented by their passage tickets. This was in accordance with the rule of the defendant, which provided that “baggage men must see the passengers’ tickets before checking baggage, and baggage must only be checked to the place for which a passenger holds a ticket.” As checks on baggage indicate its destination on a train, it cannot as matter of practice, with propriety or prudence, be taken off by the employés of the railroad company, and left at an intermediate station, without special directions from it to that effect. When baggage has reached its place of destination, as indicated by the checks upon it, the company is at liberty to assume that the person presenting the check is owner of the property, and the delivery to him is justified; but a different question might arise if a person, having clandestinely obtained possession of the check from the owner, should be permitted to take the baggage at an intermediate place or station. The rule before mentioned was a reasonable one. While the plaintiffs may not have known of its existence, they understood that the agent at Blythe did not consent to check their baggage to any place other than Suspension Bridge, and the fact that it was checked to that place furnished some reason for them to apprehend that they would be unable to have it taken off the train at London. The contract was to carry the plaintiffs and transport their baggage to Suspension Bridge. They had permission to stop over night at London, and resume their passage the next day. This interruption permitted in their passage upon the tickets did not necessarily include the baggage.

It is true that a person seeking passage for his property has the right to prescribe the route and the manner of its transportation when more than one route and different means are open to the common carrier, and for the consequences resulting from failure to observe such direction the carrier is responsible. Goodrich v. Thompson, 44 N. Y. 324; Isaacson v. Railroad Co., 94 N. Y. 278. But that proposition has no essential application to the situation in the present case. The plaintiffs desired to have the baggage taken by the route on which it was transported, and the right to have it so done was derived from the contracts, as represented by their tickets, for a continuous passage to the place of destination. It is not seen that the mere privilege, extrinsic the contract, which permitted the *546passengers to stop off over night at an intermediate station, and resume their passage the next day, afforded to them the right to require the company to unload and reload their baggage at such station. Our attention is called to Railway Co. v. Lyon, 123 Pa. St. 140, 16 Atl. 607. There the company refused to sell to the defendant in error a passage ticket to Birmingham station, where the train uniformly stopped for passengers to alight in the city of Pittsburgh; and he was required to take a ticket for the station further on, and known as the “Union Depot,” within the city. The company’s agent also declined to check his baggage to Birmingham station, and checked it to the destination mentioned in the passage ticket. The court very properly held that the rule of the company requiring its agents to refuse to sell tickets and check baggage to the intermediate station was unreasonable. The doctrine of that case would have been applicable to the present one if the defendant had declined to sell to the plaintiff a passage ticket to London. This the defendant was neither requested nor refused to do. That case, therefore, does not seem to have any necessary application to the one at bar.

The action, however, is not founded upon any alleged default in not yielding to the request of the plaintiffs to permit the baggage to lay over at London until the following day. They, by their complaints, allege that the defendant received the baggage at Blythe, Canada, to be carried from there to Suspension Bridge, in the state of New York, and that, by the negligence and improper conduct of the defendant, the baggage was lost. • The question that the plaintiff must rely upon the cause of action as alleged was raised at the trial by the defendant’s counsel. No motion was made for leave to amend the complaints. It is now urged that the complaints may, on this review, be amended so as to conform the pleadings to the proofs. This might be done if it appeared that the parties had consented to try and have the action determined upon an issue not within that alleged in the pleadings; but that, as has been observed, is not the situation. In support of a judgment, the court may, on review, treat pleadings as amended, so as to conform the facts found, when it can be done without overruling an exception well taken upon the question of variance between the pleadings and proofs. Pratt v. Railroad Co., 21 N. Y. 305. But that rule does not apply with the same force to create error, and for the purpose of reversal of a judgment. The cited case of Hudson v. Swan, 7 Abb. N. C. 324; was reversed (83 N. Y. 552). The referee, in his determination of the case, treated the action as founded upon the cause of action alleged in the complaint; and there was no error in his conclusion that it was not sustained by the evidence.

The judgment should be affirmed. All concur.