FOURTH DEPARTMENT, APRIL TERM, 1893.

necessary cars for that purpose, they were not furnished in sufficient numbers to enable them to ship the hay as fast as it was delivered, and it accumulated until the inclosed portion of the defendant's freight house in which it had been placed for shipment, became filled, when Mr. Reff, acting for the plaintiff's assignors, notified the farmers who were delivering the hay, not to deliver any more, as there was no more room for it. Thereupon the defendant's agent, in whose presence this direction was given, countermanded it and directed the farmers to continue drawing their hay, and stated that he would find room for it. In pursuance of this order the farmers continued to deliver their hay at that station, and under the direction of the defendant's agent, it was placed in an open shed which adjoined or formed a part of the defendant's freight house, where it remained until it was destroyed.

During all the time after the commencement of the delivery of this hay until it was destroyed, the defendant had a general order from the plaintiff's assignors to ship their hay as fast as loaded upon the cars, to certain firms in the city of New York, unless other special orders were given. In pursuance of this order, the defendant from time to time during the season, shipped all that was loaded in their absence.

No

Upon the hay shipped the freight was paid by the consignee. No receipt, shipping bill or bill of lading was ever delivered by the defendant to plaintiff's assignors, for any of the hay loaded or forwarded in their absence under such general orders. None of the bales of hay were marked with the name of the consignee. single bales were shipped, but all the hay was shipped by carloads, and the defendant marked the cars with the name of the consignee. While defendant's agent testified that he had forwarded hay in the absence of the plaintiff's assignors, and signed shipping bills in their names for his bookkeeper to make entries from, yet there was no proof that that fact ever came to their knowledge, or that they knew the contents of the shipping bills or receipts, or the conditions printed thereon.

The witness Reff, who was employed by the plaintiff's assignors to load this hay, testified that he had loaded as many as nine cars in a day, and could have loaded as many any day if they had been furnished, but that the defendant did not furnish more than four or five cars

FOURTH DEPARTMENT, APRIL TERM, 1893.

in any one day. He also testified that he was directed by them to load cars as fast as they could be obtained; that he did so during the entire season, and that there was never an occasion when cars were not loaded as soon as they were switched down to the freight house for that purpose. Upon evidence sufficient to establish the foregoing facts, the question whether the defendant held the hay in controversy as a common carrier, was submitted to the jury.

The facts, we think, render it quite manifest that the sole purpose of the delivery of the hay to the defendant was for as early transportation over its railroad as could be made in the course of its business, and that there was such a delivery and relinquishment of all control over the property to the defendant as authorized it to transport the property without any further direction from plaintiff's assignors. It is equally manifest that this hay was detained at the defendant's freight house for its own convenience, to enable it to procure cars for its transportation, and that the delay in forwarding it was not occasioned by any omission of the plaintiff's assignors to direct where it should be shipped, or to load it upon the cars as fast as they were furnished for that purpose, nor was it detained in furtherance of any desire or direction, or for the convenience of the plaintiff's assignors. Nothing further was required to prepare it for transportation. No further orders were necessary to enable the defendant to forward it. The only act the plaintiff's assignors were to perform was required by the rules of the defendant company, and for this they had fully provided by employing Reff, who was prepared to load the hay whenever cars were furnished by the defendant for that purpose.

We think the duty of loading freight delivered to and accepted by a railroad company for transportation over its road, rests primarily upon the company. In this case, however, the defendant had adopted a rule by which the shippers of heavy and bulky freight were required to load it upon the cars. The binding force of such a rule may, perhaps, be doubted. But be that as it may, the most that can be claimed for the rule under consideration is, that by reason of its adoption, the shippers of that particular kind of freight were required to furnish the necessary help to load it. Obviously the purpose of this rule was not to change the company's relation to the property delivered to and accepted by it for the sole purpose

FOURTH DEPARTMENT, APRIL TERM, 1893.

of being carried over its road. If such had been its purpose, it would have plainly stated that such freight would not be received or accepted for transportation until it was loaded on the cars. We think it is quite apparent that this rule was intended at most to impose upon the shippers of such freight the burden of loading it, and thus avoid the necessity, on the part of the company, of keeping a large force of employees for that purpose. The time, place and manner of loading, and the persons performing that service were clearly under the direction and control of the defendant.

Under the facts and circumstances disclosed by the evidence in this case, we think the court was justified in submitting to the jury the question whether at the time of the fire the defendant was in possession of the property destroyed as a common carrier, and that the verdict of the jury should be upheld.

We have examined the portion of the charge of the trial court to which the appellant has called our attention in his brief, but have found no error which requires us to disturb the judgment.

The only other ground upon which the defendant seeks to reverse the judgment is, that there was a special contract between the plaintiff's assignors and the appellant by which its liability as a common carrier was so far limited as not to include a loss by fire. It is not contended that there was any express contract of that character, either oral or written, nor that any shipping bill, receipt or shipping orders for this property were delivered to the plaintiff's assignors, or by them to the defendant, or came to their knowledge.

The ground of the appellant's contention seems to be that this court should assume, although the question is here presented for the first time, that if the hay was accepted by the defendant as a common carrier, it was accepted under a special contract to be implied from its general course of dealing, in that it usually delivered to shippers receipts which contained a provision to the effect that it would not be responsible for damages occasioned by delays from storms, accidents or unavoidable causes, or by decay or injury of perishable articles, or from injury to property produced by frosts, heat or the elements, or from leakage occasioned from any defects in packages.

We do not see how this contention can be sustained. In Park v. Preston (108 N. Y. 434), it was held that in the absence of evi

FOURTH DEPARTMENT, APRIL TERM, 1893.

dence to the contrary, it is to be assumed that property accepted by a carrier for transportation, is taken under the responsibility cast upon him by common law, except as modified by statute, and if lost under circumstances which render the carrier liable by the general rule of law he must respond unless he can show that there was a special acceptance equivalent to a contract which exempts him from the ordinary liability of common carriers, citing Dorr v. New Jersey Steam Navigation Co. (11 N. Y. 485); Blossom v. Dodd (43 id. 264); Madan v. Sherard (73 id. 330).

Again in Reed v. Fargo (7 N. Y. Supp. 185; 26 N. Y. St. Repr. 587) it was held that a carrier who fails to give a receipt, or to make any other contract for the shipment of property, will not be absolved from liability for its destruction by evidence that the plaintiff or his agent previously knew of conditions in the shipping bills or receipts usually given, which would discharge the defendant from liability for the loss sustained. (See Pearsall v. W. U. T. Co., 124 N. Y. 256; Dorr v. New Jersey Steam Navigation Co., 11 id. 485; Kirkland v. Dinsmore, 62 id. 171, 175; Blossom v. Dodd, 43 id. 264.)

We find in this case no sufficient evidence of any such special acceptance or contract as to the property in question, as would exempt the defendant from the ordinary liabilities of a common carrier. We think the cases cited are decisive of this question, and require us to hold that the defendant's liability as a common carrier was not limited by contract or otherwise, and that the verdict of the jury should be upheld.

This conclusion renders it unnecessary to determine whether if such a receipt had been delivered to the plaintiff's assignors, it would have exempted the defendant from liability for this loss.

The judgment and order must be affirmed, with costs.

HARDIN, P. J., and MERWIN, J., concurred.

Judgment and order affirmed, with costs.

DECISIONS IN CASES NOT REPORTED.

FIRST DEPARTMENT, MARCH TERM, 1893.

The Phoenix Bridge Company, Appellant, v. The Keystone Bridge Company, Respondent.-Judgment affirmed, with costs, on opinion of Mr. Justice Beach, in court below. James Crawford, Trustee, etc., Appellant, v. Alfred B. Price, Respondent. - Appeal ordered stricken from calendar. Opinion Per Curiam: It appearing that the case has not been certified; and the papers not showing that the parties have stipulated in writing that the papers are copies of the judgment roll and case this appeal was improperly upon the calendar, and should be stricken therefrom.

Cornelius L. Cooke, Respondent, v. The Phoenix Bridge Company, Appellant. - Judgment affirmed, with costs. No opinion.

Frederick A. Haight, Appellant, v. Watson B. Dickerman, as President, etc., Respondent, Impleaded, etc. - Judgment affirmed, with costs, on opinion written on appeal from order vacating injunction.

Rufus O. Parker, Respondent, v. The Mayor, etc., of the City of New York, Appellant.Order affirmed, without opinion.

Martha E. Clark, Respondent, v. Frederick K. Clark, Appellant. - Order denying motion to strike out, etc., affirmed, with ten dollars costs and disbursements. Opinion by Van Brunt, P. J.: It is claimed that the judgment entered herein exceeds the prayer and allegations of the complaint. An inspection of the complaint, however, shows that this claim is entirely unfounded, and that all the relief granted in the decree was prayed for. It is further urged that this action was brought to quiet title and that certain allegations necessary to such an action were not contained in the complaint in question. It may be doubtful whether any such question can

be raised upon this appeal. If the allegations
in the complaint were insufficient it was the
duty of the defendant to demur to the same.
But the action is not founded upon any such
theory. It was a bill to have adjudged null
and void certain instruments which had been
given by the plaintiff to the defendant, and
to enjoin him from attempting to assert
rights by reason of such instruments, and
that is all that was adjudicated. The order
appealed from denying the motion to strike
out portions of the decree should be affirmed
with ten dollars costs and disbursements.
The appeal from the order denying the
motion to resettle said order is a'so equally
without merit. The question as to the right
of the appellant to have the date of the
decree changed to the time when it was made,
filed and entered, does not possess any greater
merit as the decree was dated upon the day
upon which the court directed the judgment
to be entered. This order, therefore, should
also be affirmed, with ten dollars costs and
disbursements.

Julius H. Caryl v. F. X. Stafford and others.-
Motion dismissed. (Mem.)

William H. Daniells and others v. F. X. Staf-
ford and others. --Motion dismissed. (Mem.)
Philo T. Ruggles v. F. X. Stafford and others.-
Motion dismissed. (Mem.)

John P. Paulison, Respondent, v. Benjamin
Gates and others, Appellants. - Motion
granted, with ten dollars costs.

John P. Paulison, Respondent, v. Benjamin Gates and others, Appellants. - Motion granted, with ten dollars costs.

The Dueber Watchcase Manufacturing Company, Respondent, v. Joseph Fahys and others, Appellants.-Order affirmed, with ten dollars costs and disbursements.

FIFTH DEPARTMENT, MARCH TERM, 1893.