#### George Carrizzo, Respondent, *v.*New York, Susquehanna and Western Railroad Company, Appellant.

Second Department,

June 9, 1911.

• Carrier- — demurrage — action for value of goods — erroneous charge.

Where in an action by a consignor to recover the value of certain ears of . paper which the defendant carrier refused to deliver to the consigne pending payment of demurrage for detention of the ears on the defendant’s siding, which was inaccessible to teams and only connected by private delivery tracks to the consignee’s warehouse; the main issue is whether the fault of the carrier or of the consignee prevented tkei delivery of the cars at the warehouse, it is error to charge, as a matter of law, that before a claim for demurrage could arise the ears must have been in a reasonably accessible place, and that the consignee must have been given an opportunity to unload them.

Such a charge ignores the vital question as to whether the carriers performance of its duty to furnish an opportunity to unload was defeated by the consignee’s fault in not clearing its private delivery tracks.

It is error to charge that it was the carrier’s duty to notify the shipper within a reasonable time of the situation which had arisen.

Appeal by the defendant, the New York, Susquehanna and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the Yth day of February, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

*567
      *William C. Cannon [Frederic B. Jennings*and *B. L. von Bernuth*with him on the brief], for the appellant.

*Samuel Weclisler,*for the respondent.

Thomas, J.:

The plaintiff, consignor, has recovered a judgment for the value of eleven carloads of waste paper, which the defendant carrier refused to deliver to the consignee pending payment of demurrage for detention of the cars on defendant’s siding beyond the time allowed for the removal of the freight. The defendant’s undertaking was to carry the goods to Bogota, N. J., where its terminal facilities suitable for the deliveries in question consisted of sidings some three-quarters of a mile in length, inaccessible to teams and connected with delivery tracks to the plant of the Traders’ Paper Board Company, at the time in the custody of Bell as receiver, to whom the shipment was made. The custom had been to make deliveries to the consignee on such tracks, and such delivery of the goods in question was contemplated by the parties. The private track and unloading platform alongside it had capacity for eleven cars, and the question is whether this track permitted the delivery of the cars or ’any part of the same during the time for which defendant charges demurrage, and if not, whose fault precluded the delivery; was it that of the consignee in failing to unload cars entitled to precede these in question, or was it that of the carrier in failing to take empty cars out and set loaded cars in this siding with proper dispatch? The evidence on this subject was conflicting’, and if the matter was properly submitted to the jury, the verdict is conclusive as the weight of the evidence does not so favor the defendant as to demand reversal. But it is contended that the learned justice did not submit this issue distinctly and unconditionally to the jury. There is support for such exception to the charge, for it was stated: “ I instruct you, as matter of law, that before a claim for car demurrage could arise, the cars must be in a reasonably accessible place, so that they could be unloaded or the goods taken out of them. ” And again: *{‘*But this claim which the railroad made is based on detaining their cars by failing to unload them, and before they are entitled to assert the claim *568they must show, as I charge you, that the consignee had an opportunity to unload them, either where they were or in a place to which they had been brought.” This charge ignores the defendant’s position that, defendant’s performance of its duty to furnish an opportunity to unload was defeated by the consignee’s fault in the clearance of the private siding, and so the demurrage liability came into operation. That was. the vital question. But it is feared that the jury understood that it was the defendant’s duty in any event to place the cars in a position for unloading as a condition precedent to the inception of the obligation to pay demurrage. The defendant undertook to present its request in its fifth request to charge, which is somewhat defective in omitting, however, to describe a siding so loaded by the consignee’s fault as not to permit the placing of cars, etc. But I do not' doubt that the request was understood to present defendant’s contention, and if so the omission to charge it makes. clearer the error to which attention has been called. The defendant excepts to the charge that it was its duty to notify the shipper within a reasonable time of the situation that had arisen. Whether that duty rested upon it was at least a question for the jury, as defendant urges upon this court, but it did not ask its submission, as it will be enabled to do upon another trial..

The judgment and order should be reversed and a new triál granted, costs to abide the event.

Jenks, P. J., Burr, Carr and Woodward, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.