#### Robert B. Hirsch and Others, Copartners, Doing Business under the Firm Name and Style of William Openhym & Sons, Appellants, *v.*The New England Navigation Company, Impleaded with Ferdinand S. Ferguson, Sr., and Ferdinand S. Ferguson, Jr., Doing Business under the Firm Name and Style of F. S. Ferguson & Son, Respondents.

First Department,

December 11, 1908.

Carrier — loss of goods in transit — pleading — misjoinder of action against truckman and carrier — Interstate Commerce Act construed.

A complaint which in substance alleges that the plaintiff delivered goods to the defendant, a truckman, doing business in the city of New York, to convey the same to the wharf of the defendant navigation company for carriage by the latter to another State, and that the defendants failed to deliver the same to the consignee, who assigned his claims to the plaintiff, states two causes of action — one against the truckman and the other against the navigation company.

But as neither of said carriers is responsible for a loss caused by the other the actions are improperly united.

Sections 1 and 20 of the Interstate Commerce Act, providing that carriers receiving property for transportation into another State shall be liable for loss or damage caused by any carrier to which the property may be delivered or over whose lines the property may pass, where such carriers are used as a common control, management or arrangement for continuous carriage between places, have no application to a truckman who, as an independent business, merely carts goods to a carrier.

McLaughlin, J., dissented, with opinion.

*179Appeal by the plaintiffs, Robert B. Hirsch and others, copartners, etc., from an interlocutory judgment of the Supreme Court in favor of the defendants Ferguson, entered in the office of the clerk of the county of New York on the 20th day of May, 1908, upon the decision of the court, rendered after‘a trial at the New York Special Term, sustaining the said defendants’ demurrer to the complaint.

*Tipple*& Plitt, for the appellants.

*Henry C. Hunter,*for the respondents.

Clarke, J.:

The complaint alleges that the New England Navigation Company, one of the defendants, was a foreign corporation engaged in the carrying and transporting of goods as a common carrier for hire and operating the Bridgeport, New Haven, Norwich and Providence lines and the Fall River and New Bedford lines; that the defendants Ferguson were copartners engaged in the trucking and express business and the carrying and transporting of goods, wares and merchandise for hire in and about the borough of Manhattan, city and State of New York, as a common carrier for hire; that the plaintiffs, in the borough of Manhattan, delivered to defendants above named one case of goods consigned to Jordan Marsh Company, Boston, Mass., which said defendants accepted as such common carriers for the purpose of carrying and delivering to said consignee for and in consideration of a reasonable reward to be paid therefor; that said defendants have wholly failed and omitted to deliver the said case of goods to said consignee; that by reason of said defendants’ default and omission, said consignee has sustained damages in the sum of $558.60; that said consignee, for valuable consideration, duly assigned all its right, title and interest in and to the claim upon which this action is founded to the plaintiffs.

Defendants Ferguson demurred, *first,*on the ground that the complaint did not state facts sufficient to constitute a cause of action against them; *second,*that it appeared upon the face of said complaint that causes of action had been improperly united therein, because the complaint alleges that these defendants were engaged in the trucking and express business and the carrying and transpor*180tation of goods, wares and merchandise in and about the borough of Manhattan, city and State of New York, as a common carrier for hire, and that, assuming the truth of the other allegations of the complaint, a cause of action against the defendant, the New England Navigation Company, is disclosed, which excludes the possibility of the joinder therewith, and the existence of any cause of action against F. S. Ferguson *&*Son.

From the terms of this complaint it is evident that this transaction upon which plaintiffs base their claim is this: That having a case of goods to send to their consignee in Boston, they delivered it to the defendants Ferguson, truckmen, in the city of New York, to convey from their store to the wharf of the New England Navigation Company in the city of New York, which company was to convey it to Boston and deliver to the Jordan Marsh Company; that the goods were not delivered, and that plaintiffs have endeavored, by joining the truckmen and the navigation company as defendants, to determine who was responsible for the failure to deliver, and to charge the defendant so responsible with the damages occasioned. If the goods were lost while in the custody of the Fergusons, a good cause of action is stated against them, for it is alleged that the goods were delivered to them, consigned to Jordan Marsh Company, and they accepted the same for the purpose of carrying and delivering them to said consignee for and in consideration of a reasonable reward to be paid therefor. If the goods were lost while in the custody of the New England Navigation Company a good cause of action is stated against that company, for the allegation of delivery to it could be sustained by the proof that the truck-men, as agents of the plaintiffs, delivered the goods to the navigation company.

I think it appears, therefore, that two distinct causes of action are set up in the complaint, one against the truckmen and the other against the navigation company. I do not think that they can be properly united in one action, because neither defendant would be responsible for a loss caused while the goods were in the custody of the other.

The appellants invoke in their aid the provisions of section 20 of the Interstate Commerce Act, as amended June, 1906, providing that: “ Any common carrier, railroad or transportation company receiv*181ing property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company' to which such property may be delivered or over whose line or lines such property may pass.” (24 U. S. Stat. at Large, 386, § 20, as amd. by 34 id. 595, § 7.)*

But the 1st section of said act provides that: *“*The provisions of this Act shall apply * * * to any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad (or partly by railroad and partly by water when both are used under a common’ control, management i or arrangement for a continuous carriage or shipment) from one State or Territory of the United States, or the District of Columbia, to any other State or Territory of the United States or the District of Columbia. * * * ” (24 U. S. Stat. at Large, 379, § 1, as amd. by 34 id. 584, § 1.)

It cannot be that the provisions of the Interstate Commerce Act affect a truckman in a city and hold him responsible for goods lost anywhere in the United States, upon the theory that he was the initial carrier, when all he had to do was to cart the goods from the store to the dock or the depot as an independent employment.

The interlocutory judgment appealed from should, therefore, be affirmed, with costs to the respondents, with leave, however, to the

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appellants, upon payment thereof and within twenty days after service of notice of entry of judgment herein, to serve an amended complaint.

Patterson, P. J., Ingraham and Houghton, JJ., concurred; McLaughlin, J., dissented.

*

 This act took effect sixty days after its approval by the President on June 89, 1906. (See 34 U. S. Stat. at Large, 595, § 11; Id. 888, Res. *No.*47.)

McLaughlin, J. (dissenting):

The defendant Ferguson & Son demurred to the complaint upon the grounds (1) that it did not state facts sufficient to constitute a cause of action against it; and (2) that causes of action were improperly united. The demurrer was sustained upon the first ground and this court is about to affirm the judgment upon the second ground.

*182Irrespective of the question whether an interlocutory judgment sustaining a demurrer upon the ground that the complaint does not state a cause of action can be sustained on appeal upon the ground that causes of action have been improperly united, I am of the opinion that neither ground of demurrer is good. When the validity of a pleading is challenged, the allegations therein are not to be construed strictly against the pleader. *(Rochester R. Co.*v. Robinson, 133 N. Y. 242.) “ If the reasonable import of a complaint is a cause of action, a demurrer does not lie because the language of the complaint permits an exclusion of such cause of action.” *(Naylor*v. *N. Y. C. & H. R. R. R. Co.,*119 App. Div. 24; *Olcott*v. Carroll, 39 N. Y. 436 ; *Ketchum*v. *Van*Dusen, 11 App. Div. 332.) The facts stated are not only admitted by the demurrer but also all facts which can be implied from the allegations by reasonable and fair intendment. *(Coatsworth*v. *Lehigh Valley R. Co.,*156 N. Y. 451; *Sanders*v. *Soutter,*126 id. 195; *Lesser*v. *Bradford Realty Co.,*116 App. Div. 212.)

The complaint after charging that the defendant the New England Navigation Company was *“*engaged in the carrying and transporting of goods, wares and merchandise as a common carrier for hire, and operating the Bridgeport, New Haven, Norwich *&*Providence lines, and the Eall Eiver and New Bedford lines,” and that the defendant Ferguson & Son was *“*engaged in the trucking and express business and the carrying and transporting of goods, wares and merchandise for hire in and about the Borough of Manhattan, City and State of New York, as a common carrier for hire,” alleged:

*“Fourth.*That heretofore and on or about the 26th day of December, 1906, plaintiffs above-named, in the Borough of Manhattan, City and State of New York, delivered to defendants above-named, one case of goods, wares and merchandise - * * properly packed, marked and consigned to Jordan Marsh Company, Boston, Mass., which said defendants accepted as such common carriers for the purposes of carrying and delivering them to said consignee for and in consideration of a reasonable reward to be paid therefor.

*“Fifth.*That said defendants have wholly failed and omitted to deliver the said case of goods, wares and merchandise to said con*183signee, although due demand has been made therefor, and said defendants now refuse to deliver the same.”

Then follows an allegation “ That by reason of said defendants’ default and omission as hereinbefore alleged ” plaintiffs have been damaged, etc. Assuming, as we must under the authorities cited, that these allegations are true, then the agreement was made, not with one defendant, but with both, and the case of goods was delivered, not to one, but to both; and if this be true, then a good cause of action is alleged against both defendants. It was a joint obligation, and for a failure to perform both are jointly liable.

Nor do I think there is more than one cause of action alleged. The only agreement under which the goods were delivered for transportation is that set out in the 4th paragraph of the complaint above quoted. The fact that Ferguson & Son did business in the borough of Manhattan and the navigation company at the other places stated, in no way prevented their entering into a joint contract to transport goods for hire from the city of New York to Boston. The 4th paragraph of the complaint, it will be observed, alleges that the plaintiffs “ *delivered to defendants*” the goods in question, *“which said defendants accepted** “ * *for the purposes of carrying and delivering'them to said*consignee.”

The prevailing opinion proceeds upon what seems to me to be an erroneous and unwarranted assumption, viz., that sepai'ate contracts were made with the defendants Ferguson & Son and the New England Navigation Company. Such assumption is erroneous because no such fact is pleaded, and it cannot be assumed for the purpose of destroying the contract which is pleaded. It is unwarranted because there are no allegations in the complaint from which such fact can be inferred.

The demurrer was sustained upon the ground that the complaint does not state facts sufficient to constitute a cause of action against Ferguson & Son. This is all that the Special Term decided. This is all the judgment determines. The Special Term, as appears from its decision and judgment, did not pass upon the question of whether causes of action were improperly united. Until it has done so, this court has no right to determine that question. *(Matter of Fitzsimons,*174 N. Y. 15 ; *Matter of*Chapmam, 162 id. 456.) It is not here for consideration. All that *184the appeal brings up is whether the complaint states facts sufficient to constitute a cause of action against the respondents, and we cannot affirm a judgment that it does not state such facts upon the ground that causes of action have been improperly united.

I am of the opinion that the judgment appealed from should be reversed, with leave to the respondents to withdraw their demurrer and answer, on payment of the costs in this court and in the court below.

Judgment affirmed, with costs, with leave to appellants to amend on payment of costs. Settle order on notice.