author:
Bosworth, Ch. J.
      Robertson, J. Moncrief, J. White, J. Barbour, J., (dissenting.)

text:
    Moses Taylor et al., Plaintiffs and Appellants, v. The Atlantic Mutual Insurance Company et al., Defendants and Respondents.
    L Where a vessel becomes a wreck, and sinks in navigable waters, without fault of the owner, and so as to be immovable by ordinary means, if the owner or any transferee, instead of abandoning it, retains such possession and control as the tiling is susceptible of, he is not liable for any injury occurring while he is in the exercise of due care and diligence to prevent it. So long as he is using all reasonable means to effect its removal, without being able to accomplish it, he is not liable for any damages resulting from • the mere fact of its non-removal.
    2. He is not under any legal obligation to attempt to remove the wreck; apd if he choose he may abandon it, and from that time his liability will cease. (Per Bosworth, Oh. J.)
    3. Negligence in the use of means to remove the wreck is not necessarily established by proof that the means first employed were inadequate. H they were such as the best skill and the largest experience selected, in good faith, as adapted to the end to be accomplished, negligence canno.t be predicated of their failure. The owner is not responsible for failing to remove the wreck if, after having made proper arrangements for carrying on the work, those arrangements failed without any fault on his part.
    4. It is not incompatible with the owner’s duty, for him to adopt a plan for the removal, which embraces the design of saving as much as possible of the wreck and cargo.
    5. Where a vessel, alongside of a public pier in the City of New York, was burned without any fault of her owner, and sunk to the bottom near the mouth of the slip or basin, thereby obstructing the slip and bulkhead so as to prevent other vessels from coming in, and the defendants, insurance companies, which had insured undivided interests in the vessel, and had accepted an abandonment made by such insured owner, after the loss, employed a man of acknowledged skill and ability in the business of wrecking, who diligently prosecuted his efforts to raise it, utitil his method failed, and he left the work, when the defendants employed another man of equal skill and ability, who adopted another plan, and continued diligently working until stopped by cold weather, nearly a year after the vessel sunk, and in the following spring resumed the work, but was soon stopped when very near completing it, by the city authorities, who took exclusive possession and control, and who finally removed the wre.ck.

      Held, 1st That the defendants were not liable to the owners of the pier, for its use in the. prosecution of their work, or for damages in obstructing the basin meanwhile, since these facts did not show any negligence on their part' ■
    2d. That the defendants were not liable.for any delays, occurring after the city authorities took possession and control.

      3d. That the defendants were not liable for any injuries to the pier, done in the course of the work prosecuted by the contractors employed by them.
    4th. Held further, that the above facts appearing from all the plaintiffs’ evidence at the trial, the plaintiffs were not- entitled to have the cause submitted to the Jury; but it was proper to instruct the Jury to render a verdict for the defendants. (Barbour and Moneia, J. J., dissented.)
    6. In such a case, if the demand made on behalf of the plaintiffs to have the cause submitted to the Jury, does not suggest what question, if any, they should be called to pass on, it is too broad to sustain an exception on a refusal of the demand. (Per Moncrief, J.)
    (Before all the Justices.)
    Heard, March 22;
    decided, June 21, 1862.
    This action was brought by Hoses Taylor, Edward Minturn and Joseph B. Collins, Trustees and Executors of the Estate of Benjamin G-. Minturn, deceased, Georg© W. Coster and Henry A. Coster, Executor and Trustee of the Estate of John G. Coster, deceased, and Catharine Mitchell, against The Atlantic Mutual Insurance Company, The Hew York Mutual Insurance Company, The Astor Mutual Marine Insurance Company, The Reliance Mutual Marine Insurance Company, The Sun Mutual Insurance Company, The Union Mutual Insurance Company, The Mercantile Mutual Insurance Company, Loftis Wood, Richard Eceles, William H. Webb.
    A former decision on a demurrer to the complaint is reported in 2 Bosw., 106 ¿ after which plaintiffs amended their complaint. The nature of the pleadings, and the substance of the evidence given at the trial, appear in the opinions of the Court.
    At the trial, on May 17th, 1861, before Mr. Justice Hoffman and a Jury, upon the close of the plaintiffs’ testimony, the defendant offered no evidence, but moved the Court to direct a verdict for the defendants, which the’ Court did, and plaintiffs excepted. The plaintiffs demanded to go to the Jury, which request being denied, the plaintiffs excepted.
    After plaintiffs had moved for a new trial, and the motion had been denied, and after defendants had entered judgment on the verdict, plaintiffs appealed to the General Term.

      Charles A. Tracy, for plaintiffs, (appellants.)
    I. The master of the vessel having brought her to unload, paying wharfage to plaintiffs, the owners were under an implied contract to pay for the use and occupation, and for any obstruction, so long as the vessel remained there. Their continuing to occupy the slip gave plaintiffs an action. (3 Blackst., 184; Mayor of N. Y. v. Hill, 13 How. Pr., 280; Jordon & S. Plank Road Co. v. Morley, 23 N. Y. R., 552; Decker v. Jaques, 1 E. D. Smith, 80.)
    II. The defendants regarded the vessel and cargo as valuable property, and were engaged in unloading her during the time of all the work. (Flanders’ Mar. L., 321, § 387, pp. 322, 323, § 389, 390 ; 2 Pars. Mar. L., 615; Abb. on Ship., 555; Schooner Boston, 1 Sum., 328; The Bee, Ware, 332; The Barefoot, 1 Eng. L. and E., 661,664.) The right to abandon her as a wreck does not give a right to continue to use the pier free of charge.
    The accident cannot shield the defendants. (See Linsley v. Bushnell, 15 Conn. R., 225; United Ins. Co. v. Scott, 1 Johns., 106; Holmes v. The United Ins. Co., 2 Johns. Cases, 329; Wiswall v. Brinson, 10 Ired., N. C. R., 554; Scott v. Shepherd, 2 Bl., 892; 3 Bl. Com., 219, 220, 236 ; Broom’s Legal Max., pp. 92, 93; Farmers’ Turnpike Co., v. Coventry, 10 Johns., 389 ; Smith v. Elder, 3 Id., 105; Clark v. Foot, 8 Id., 421; Panton v. Holland, 17 Id., 92 ; Lansing v. Smith, 4 Wend., 25; and cases cited by Hopkins, arguendo, 16; Acts of 1813, §§ 212, 218, 233, 235, in Davies’ City Laws, 541, 559.)
    III. The evidence shows that defendants were negligent. (See Phear on Rights of Water, 54, [100 Law L., O. S., 84 Id., N. S.,] ; Woolrych Law of Waters, 202, 203, [78 L. L., O. S., 62 Id., N. S.]; Althorf v. Wolfe, 22 N. Y. R., 355.) .
    Defendants having entered upon the business, thereby lbeing in the way of others doing it,were bound to diligence, even though they acted as an unremunerated volunteer. (Balfe V. West, 22 Eng. L. and Eq. R., 506; Smith’s Mer. L., 107; 1 Pars, on Cont., [1st ed.,] 581-586.)

      IV. It was error not to let the case go to the Jury. The question of negligence should have been left to them.

      Daniel Lord, for defendants, (respondents.)
    I. The accident, without fault of the owner, put an end • to wharfage. The decision in 2 Bosw., 106, disposes of wharfage. A sunken vessel creates no liability on her owner for wharfage.
    II. As to removal, the wharf keeper should do it. A wrecker (a salvor) took possession and took the office of ^saving. The defendants never had the possession. The salvor had the possession.
    III. If the wreckers were defendants’ agents, they were only bound to reasonable diligence, and that was proved.
   Bosworth, Ch. J.

The complaint in this action'was dismissed at the trial; and judgment having been perfected, the plaintiff appealed to the General Term.

The ship Joseph Walker, of about 1,300 tons burthen, while lying on the west side of pier Ho. 29, East river, at ■ the-port of Hew York, taking in cargo, took fire, on the 26th of- December,' 1853, and sunk to the bottom. She had on board some 300 or 400 barrels of resin, some 300 bales of cotton, and some 20,000 bushels of wheat, all of which was submerged. The -defendant was insurer of If parts of the ship, other insurance companies, (who are also defendants,) were insurers of the interests of other owners; only 3-2 parts being uninsured, and the owners of those parts are also defendants. The sunken wreck was not ■removed from the slip, until the 25th or 26th of October, 1855. The insured owners' of the vessel abandoned her, after she was burned and sunk, as a total loss, and the insurance companies accepted the abandonment.

The plaintiffs, who are entitled to the wharfage of the ■bulkhead on the west side of this pier, and of the west half of the pier, bring this action to recover by way of damages for the obstruction of the slip, the amount of wharfage they claim to have lost thereby, and also damages for using the pier, and for further obstructing the slip, in efforts to raise and remove the wreck of the vessel, and save whatever could be saved from the wreck. The action was tried on the issues formed by the answer of the Atlantic Mutual Insurance Company; the other defendants having stipulated that the action, as to them, should abide the event of that trial.

The two practical questions presented by this appeal are, (first,) what duty or obligation was imposed on the defendant by accepting this abandonment, and, (second,) whether'it has so failed to perform that duty or discharge that obligation, as to have become liable to pay damages to the plaintiff.

With reference to the first question, it maybe observed, preliminarily, that the ship took fire and sunk, without, any agency or fault of the defendant. She sunk to the bottom, in about 30 feet of water, at medium tide. From the time she. sunk until-she was removed, the plaintiffs expressed no desire to undertake her removal, nor made any objection to the means employed or time occupied in the effort; nor suggested that these means were injudicious or inadequate, nor that the efforts were dilatory or censurably inefficient. The vessel was sunk in an arm of the sea, and became fixed to the bottom, and ceased to be movable as a ship or vessel, by any ordinary means in the course of business or navigation. The results of the efforts made to remove the wreck demonstrates, that it cost more to remove her, than all that was saved, of both vessel and cargo, was worth.

This Court held, when this cause was before it on a demurrer to the original complaint, that "the plaintiffs could not recover, without showing that the defendants, by due care and attention, could have removed the wreck, or, at least, have shifted its position so as to prevent its being a cause of injury, and that they were in default for not having done so. (2 Bosw., 106.) The cases relied upon, as supporting this doctrine, are Brown v. Mallett, (5 M., G. & Scott, 613; S. C., 12 Jur., 204,) Hancock v. The York, New Castle & Berwick R. R. Co., (10 Com. Bench, 348,) and White v. Crisp, (26 L. & Eq. R., 532.) In the first of these cases, it was held, that “ the duty of the defendant, if it exist at all, is of a public nature; and the plaintiff, in order to succeed, must show a breach of public duty, as well as special injury to-himself,” (p. 620.) In the second of these cases, Maule, J., said, that “ the circumstance of the anchor [the vessel] being the defendant’s property, will not of itself render them liable." To have this effect, it must amount to a public nuisance, and a private injury, hy them. The declaration * * * shows about as 'good a cause of action, as if it had stated that somebody beat the plaintiff with the defendants’ stick.”

Creswell, J., said : “ Ho negligence or want of care is imputed to the defendants, either in placing the anchor where it was originally placed, or in allowing it to be removed.”

In White v. Crisp, (supra,) which, like the other two cases, arose on demurrer, the Court, in commenting upon and construing a particular allegation of the complaint, said: “How, we understand by this, that the defendants “ had it in their power, by due care and exertion, to have “ altogether removed this vessel, or to have shifted, at “ least, its position, and so might reasonably have been “ able to prevent the injury. If these words do not mean “ this, we think there was no liability on the part of the “ defendants.” * *

The fourth plea was, that the defendants “had used all “reasonable means for removing the wreck, but were “ unable before the" time when, &c., to do so; and that, by “ reason thereof, before and at the time when, &c., they “ had wholly abandoned and ceased to have any possession of it.” The Court held this plea good, and said it was clear the original owner or the transferee of the wreck may abandon it, and so put an end to his liability.

These cases establish the doctrine, that where a vessel becomes a wreck and sinks in navigable waters, the owner or any transferee may abandon her, and from that time his liability will cease; that he is not under any legal obligation to attempt to remove her. But if, instead of doing that, he retains such possession and control as the thing is susceptible of, he is not liable for any injury occurring while in the exercise of due care and diligence to prevent it; that, so long as he is using all reasonable means to effect a removal, without being able to accomplish it, he is not liable for any damages resulting from the mere fact of its non-removal; and that, although it may be a public nuisance, he cannot, on such a state of facts, be indicted for causing or continuing it.

It would be indeed strange, if a party who was under no legal obligation to remove, or to attempt to remove a wreck, should, because he attempted to remove it, and while using all reasonable means and diligence to accomplish the result, become liable because he had not removed it.

On no principle can a right óf action accrue, in such a ease, for not having removed the wreck, until at -least a sufficient time has elapsed to effect the removal by the use of reasonable means and diligence; and all liability for merely not removing will terminate, when the owner abandons the possession of the wreck and all control of it.

This view of the defendant’s legal duty, makes his liability, if one exist, arise out of his negligence }to use reasonable means and diligence. While using them, and he continues unable to remove the wreck, he is under no liability to pay damages to any one for not having removed it. The plaintiffs’ right, as against the defendant, is commensurate with the duty which the latter owes- to the former. They can maintain no claim against the defendant, except as founded on a duty it owes to him, and a failure to perform that duty.

Kegligence in the use of means to remove the wreck, is not necessarily established by proof that the means first employed were inadequate. If they were such as the best skill and the largest experience selected, in good faith, as adapted to the end to be accomplished, negligence cannot be predicated of their failure.

The most fully considered and best matured plans sometimes prove defective and fail. The best judgments at times form erroneous conclusions, and will continué to do sé, until to err ceases to be human. These misjudgments consist with the utmost caution, care and diligence.

The duty and grounds of the defendant’s liability, if any liability exist, being such as have been stated, we reach the question, whether there is any evidence which would justify a Jury in finding, that the defendant failed to remove the wreck, by reason of negligence in the selection or use of the means employed for that purpose.

Ho Witnesses Were examined on behalf of the defendant. We have, therefore, only to consider evidence given on behalf of the plaintiffs.

Thomas Bell made the first efforts that were made to remove the wreck. He was to have 75 per cent of the net proceeds of all he should raise; and he took entire possession and control of the wreck, in order to raise and remove her. It was" testified that “ he had the best repu- ' tatioti, as a man skillful in this sort of business, of any .man in the United States; he was esteemed the best wrecker in the United States, so far as the witness was acquainted with his reputation. He used the same means that had been successfully employed to raise the “ Great Republic,” a ship of some 4,500 tons, which was sunk the same night as the Joseph Walker, and under similar circumstances.

Ho one except Mr. Mason suggests an opinion or intimation that Mr. Bell had not the skill imputed to him, or that the opinion was entertained, before his efforts proved a failure, that the means employed were not wisely selected, Or were inadequate, or were not vigorously employed. John W. Mason; one of plaintiffs’ witnesses, says he thought, at the time, and told Mr. Bell, that he thought Mr. Bell “got along very slowly”—“That Bell said he was using all the diligence he could, and was getting his arrangements completed for going ahead.” Mr. Mason did not pretend to any experience in the wrecking business, and said he suppled he was not as good a judge in the matter as Mr. Bell, and that he considered it required a skillful man in such business, to remove her.

Junius S. Lewis, another witness on behalf of the plaintiff, testified that he had been a wrecker some eight or ten years, and had raised wrecks from various depths, one being operated upon at a depth of eighty feet below the surface. That he became interested with Bell, in the raising of this wreck, in June, 1854. He details what was done while he was concerned in the operations. In answer to the question whether, “ during the term of your work- “ ing at that wreck, from your commencement with it, “ under Oapt. Bell, and in connection with him, until the “ work was arrested, under Condon, was it prosecuted with “ all the diligence the work admitted of?” He said, “It was, in my judgment. I never used more diligence, and I never knew Mr. Bell more devoted; every man that could be used successfully, or to any value, was brought to the work,” &e., &c. Also, that the suspension of the work from in December,' 1854, into March, 1855, was required by the prudential considerations which lie stated.

Ho one expresses an opinion contrary to that of Mr. Lewis; and Mr. Lewis, on examining Bell’s plan, thought it judicious, and approved of it. When he suspended work in December, 1854, he thought the vessel was in a condition to be removed in a couple of weeks, when the work could be resumed, in the following March.

Somewhere from the first to the middle of March, 1855, Mr. Lewis resumed operations, and was soon arrested in his labors by the city authorities, who then took exclusive possession and control, and thence continued it, until the wreck was removed in October, 1855.

The only other witness who expressed an opinion, in regard to the means used by Bell & Lewis to remove the wreck, is Joseph T. Martin, who testified to the opinion that it could have been removed in January, 1854, by using India rubber camels inflated with gas. But neither before nor since had he known of a vessel of over 300 tons burden, being so raised. That process?after being tried a year and half, was given up.

I do not think a Jury would be justified in finding negligence in the selection or use of means, on such slight evidence as that of Messrs. Mason and Martin, against that of Messrs. Bell & Lewis; or that the evidence, as a whole, justified the submission of any such question to the Jury. It should not be submitted, where the plaintiff’s evidence is equally consistent with the absence as with the existence of negligence in the defendant. (Cotton v. Wood, 8 Com. Bench, N. S., 568.) But the case is not even as strong as that, on the part of the plaintiff.

If this view is correct, then there is no liability resulting from the mere omission to remove the wreck, prior to the time Mr. Lewis was ejected from it.

From that time, neither the defendant nor any one employed by it or with its consent, had any possession or control of the wreck. They all abandoned it, or what is practically the same thing, suffered the city authorities and the persons employed by them, to retain exclusive possession and control.

Mayor Wood’s contract with Walter B. Jones was con-' eluded April 28, 1855, by which Jones was to be paid $13,000 for raising the wreck, and was to have the benefit of any lien or liens on the vessel and cargo.

A reference to the opinions expressed by the witnesses who made efforts to. remove, or applied for contracts to ' remove the wreck, shows that they severally erred in their conclusions as to what they could accomplish; and shows the importance, in disposing of the evidence bearing on the question of negligence, of remembering the wide difference there is between error in judgment and negligence. The event may demonstrate the existence of the power,. and yet not tend to prove the latter.

In the proposition of Martin, dated January 6, 1854, he stated his expectation of being able to raise the wreck in about two weeks, but offered to. contract to remove her, “in all of this.” (that) “month.” He testified that his company could have taken her out “in the month of January.”

Inasmuch as his company never before or since raised a ■vessel of over 300 tons burden,- and abandoned their process about a year and a half after that, and inasmuch as all the efforts made did not result in her removal until, in October, 1855, it cannot be said to be an act of negligence . that the contract was not given to that company. And there is nothing to justify the conclusion, that if it had been given to that company, that the wreck would ever have been removed by the means it proposed to employ.

Mr. Bell does not state in what time he thought he could remove her. But it is evident he expected to accomplish it as. soon as he had placed the canvas in position, and was able to use his pumps.

Mr. Lewis states the opinion, that, by using his plan in the outset, he could • have removed her in about two months. But that he would not have commenced work under it before March, as it could not be safely prosecuted earlier. At the outside, according to his theory, he would have removed her in five months from Jan. 1, 1854.

His plan was adopted in August, 1854. He commenced immediately, and, the last of September, was in readiness ... for efficient operations, and prosecuted them until about the middle of December,' 1854, when the weather became so frosty that he deemed it unsafe to expose his chains to the action of such weather, and suspended operations, supposing that in March, on the return of suitable weather, they could be concluded in about two weeks. What the event would have further demonstrated in regard to his plans and anticipations, had> he been let alofie, is left to conjecture. He was expelled from the wreck in March, 1855, by order of the Mayor of the city. In addition to what he testifies to, as to actual diligence and good faith in his efforts, it was his interest to permit no unnecessary delay/ Heither he nor Bell was to be paid anything if they did'not succeed; and they incurred the expense of keeping vessels over the wreck, and Mr. Wintress, in charge of them during the winter. It was for their interest, if, in the fair exercise of their judgment, enlightened by their long experience in the business, and also in the matter of this wreck, they believed it practicable to continue opera-' tions after the middle of «December, 1854, to have done so.

On the 26th of April, 1855, the contract between Mayor Wood and Walter R. Jones, for the removal of the wreck, was concluded. Jones agreed to remove it “within a, reasonable time,” and states in his contract, that he thinks “the job may be accomplished in sixty days.” This is as long a period as Lewis thought he required, if his plan had been originally adopted.

On the 30th of April, 1855, O. E. Barnes contracted with Walter R. Ives, to remove her in 90 ■ days from .that date. On the 9th of May, 1855, Barnes and Daniel Dodge contracted with Jones to remove her in 90 days from that date.

On the 15th of October, 1855, over five months from that time, Barnes was occupied in taking out cargo, and, in turn, was expelled from the wreck, and excluded by force, from continuing his labors, although he then had it in a position which would have secured its removal in a few days.

Hence, the testimony shows, without contradiction, that from early in January, 1854, until October, 1855, (except-. ing the time that Lewis suspended operations, from, the middle of December, 1854, to March, 1855,) different persons, conversant with business of this kind, and interested to effect the removal, and to effect it with the least practicable delay, were constantly and vigorously occupied, at a great expense to themselves, to accomplish that' object.

There is no giymnd, upon the evidence^ on which the conclusion can be justified, that - it was negligence to attempt the removal by Bell’s plan; or, after that was demonstrated to be insufficient, to pursue the plan of Lewis; or that there was a want of reasonable diligence in pursuing either plan, while the work of removal was prosecuted under it.

From the time of Lewis’ expulsion, and the assumption of possession and control by the Mayor of the city and those who acted under the contracts made with him, there was an actual, an entire abandonment by the defendant of all possession and control, whether real or apparent. The defendant’s liability then ceased, and for any unreasonable delay thereafter, in removing the wreck, the defendant is not liable.

If there be any liability for that, it must be pursued against those who had the possession and control, and used the means, which are alleged, to have been unreasonably inefficient or dilatory.

I think, therefore, that on the evidence there can be no claim against the defendant for damages for not having removed the wreck. And, if this be so, there can be none for the expenses of dredging, «paused by the accumulation of débris,:«deposited by the action of the tides in and about the wreck. Hor is there any for injury to the pier itself.

The plaintiffs’ only witness who spoke to that point, states, that “there was no special damage done to the pier—not to amount to anything—probably fifty dollars would have replaced all that.” There is no specification of any item of damage done to the pier itself, by either Bell or Lewis; nor of their having made any use of it, which obstructed the passing or repassing of carts, or which was in itself wrongful. -

And I cannot think that by force of the contracts with Bell, or between Bell and Lewis, it can be held, that whatever use they made of the pier, was a like use and occupation by the defendant. The latter had no control over their operations and was not an actor in them.

The possession and control of the ship were surrendered ■ to Bell. He undertook the removal, and to do it as best he could. Ho one had any direction to give to him, or undertook to interfere with him in carrying out his plan.

I think the cause was correctly disposed of at the trial, and that the judgment should be affirmed.

Robertson, J.

Two causes of action are set out in the complaint in this case. The first for the occupation of the plaintiffs’ slip or dock by the vessel in question, (Joseph Walker,) while afloat and after she was sunk, and by other vessels employed to refit, float or remove her; this was a quasi contract. The other, for the loss of the wharfage of such slip by the use of various machinery and vessels closing it up, and the sinking of them and the vessel in question in such slip ; which was a species of tort. #

The defendants, in their Answer, besides putting in issue the right of the plaintiffs to the wharfage of the slip in question, and the fact of defendants having kept any vessels or machinery fast to the pier, or that the vessel in question remained fast to the pier, deny two important allegations in the complaint:

I. Any ownership of the vessel after she was burned and sunk, and all acts of ownership thereof by them.» ■
H. The possibility of removing such vessel, within a reasonable period, without unreasonable expense, even by proper means and with due diligence.

The plaintiffs’ claim rests entirely upon the actual ownership of the .wreck by the defendants, or their exercise of acts of ownership over it, the duties thereby devolving'on them, and their mode of discharging such duty.

The question of liability of the owners of a submerged vessel, for injury to other vessels by it, is discussed and passed upon iú White v. Crisp, (10 Exch., 312; S. C., 23 Law J. R., [N. S.,] Ex., 317, and 26 Eng. L. and Eq. R., 532,) and "Brown v. Mallett, (5 M., Gr. & Scott, 613,) but nothing, is said as to any supposed liabilities by implied contracts with third persons. That the Court in those cases did not intend to apply the doctrine laid down by them to contracts is evident from the qualification in the last case of the doctrine laid down in the first, by requiring the sunken vessel, or obstruction, to be a public nuisance in ordpr to make the owner responsible. The first case admits the liability to cease when the possession of the sunken vessel is abandoned; and the duty which is therein charged on the owner is, merely, that if he can, by due care and exertion, shift its position so as to prevent injury by collision, he is bound to do so, although it is out of the way of ordinary navigation.

The reason for the distinction in such case, as to the liability for torts, or on contracts, is obvious. Where a person has power to remove an obstruction from the highway, whether of land or water, when it is valuable to him as a piece of property, and he exercises acts of ownership over it, it is a permissive nuisance to omit to do so, and he is responsible for injury caused by it to others. But' a vessel sunk in a slip, by an unavoidable cause, is a common calamity to both the owners of the slip and the vessel, for which neither is responsible. The waters of the slip are still part of the aquatic highway, on or over which every one has a right to go. The defendants would have had no right to shift the nuisance to another slip, or the channel way, nor were they under any obligations to destroy all the property in it by blowing it up and scattering it, merely because it was an obstruction to the plaintiffs’ profits. They were bound, undoubtedly, not to leave it an unreasonable time there, and were bound to use due diligence in removing the property, or abandoning the ownership .of the wreck. This can be the only reasonable, practical and just rule, where two persons are overtaken by a common calamity, and one seeks to. aggravate or prolong the injury to the other for his own benefit.

The mere occupation of the plaintiffs’ slip by the vessel in question, therefore, did not give them a right of action until it was unreasonably prolonged, whether it were two or fifty years. It is true one of the witnesses, (Lewis,) says he lifted the vessel clear, and could have carried her anywhere; but he does not say he could have carried her to a place of safety; and the defendants had as much right to endeavor to save the cargo in that slip as anywhere else, provided they used due diligence. After such lifting, the labors of the defendants were continued in endeavoring to remove the cargo and lighten the vessel; and it was undoubtedly owing to such labors that the vessel afterwards was so lightened as to be carried off by the employees of a public functionary, as is shown to have been done. It was clearly the duty of the defendants to have used due diligence and proper means for removing the wreck in question in a reasonable time; and this obligation includes .not only the employment of skillful men as instruments, but the adoption by them of proper means, and the prosecution of the work%ith due diligence; but it does not require the utmost diligence or the use of the most rare and successful means ever known by any human being or even of those of which the knowledge was limited to a'few. The -failure of instruments or insufficiency of materials employed, and even delays in carrying on the work, would not amount to a dereliction of duty, if reasonable caution and judgment were exercised in the -selection of such instruments or materials, and no more time was lost than was reasonably necessary to prepare for the work, provide instruments and materials, procure mechanics or scientific persons or workmen to carry on the work, and even to devise new plans in case those previously tried failed. The defendants would, in fine, not be responsible if, after having made proper arrangements for carrying on the work, those arrangements failed without any fault on their, part; they are not to be held to as strict an accountability as if they had taken the risk of all accidents and undertaken to use the utmost diligence, by a contract with the plaintiffs.

In regard to .the testimony respecting the degree of care and judgment practiced in the use of means in this case, it would appear that an experienced man was employed within a short time after the accident, who worked diligently until he left; that when he left, another of equal skill was employed in his place, who continued working diligently until stopped'by cold weather, and in the spring operations were resumed and continued actively, until stopped as before mentioned. The delay or defeat of the enterprise by the bursting of the-canvas first employed to envelope the wreck, was not imputable to the defendants, as it had been originally properly prepared for the purpose, was made of suitable materials, and yielded to some defect not perceptible to outward observation, and the cause of which was only a matter of conjecture.

Assuming the plan of Mr. Lewis to have deserved the praise bestowed by him upon it, and to have been actually superior to that of Captain Bell, yet in the opinion of the latter, who was at least equally experienced, it was not so. It was not, therefore, so clearly the best plan as to have required the defendants to adopt it, even although a Jury might have found it to be the best, if that question had been submitted to them, because there is no evidence that it was generally recognized to be the best, so that a prudent man would have most probably adopted it in his own case. Estimates of witnesses, as to superiority of plans or the" time necessary to raise this vessel, based upon a continuously favorable use of means, without interruption by accidents or neglect of contractors, are wholly inapplicable and unavailable against evidence of actual failure after employing the means and judgment, and using the degree of diligence, required and permitted by law in such case. If no mode had been attempted, such evidence might have been available in determining from what time damages should begin to be estimated, but for that purpose only. Captain Bell agreed to do his work “ with all possible despatch,” and was a competent person; if he failed, the only . obligation on the defendants was to renew their efforts, as long as they claimed property in, and exercised the rights" of owners over the wreck.

Messrs. Martin and Mason are the only witnesses who found fault with the means employed; the first opposed to them a plan of his own, which he had never seen tried on a vessel of anything like the size of the Joseph Walker, and the second admitted he had no experience in wrecking business, and did not know as much as the operator, whose slowness he criticized. Every one employed on the vessel worked diligently, on the plan adopted by him, and there was no evidence, except of the parties so employed, that any one plan used was better than another. Some of them, with diligent working, took more time than their own estimates, although stimulated by the expectation of a large compensation if successful; thus showing the unreliability of such evidence. The last contractor was expelled by force, when he was within two days of reaping the fruits of his labors, as testified to by him, and/the obstruction was removed in a short time afterwards. The utmost, therefore, the plaintiffs could have claimed, would be damages for the delay, not compensation for all the time the vessel was in the slip; but even that claim is unsupported by the testimony. There is evidence of such long, continuous, expensive, judicious, professional, skillful exertions to remove the obstruction, as to raise a strong presumption that everything was done which could reasonably have been demanded, and there is not sufficient evidence to warrant an inference of negligence in the face of the former evidence.

The case was, therefore, properly taken from the consideration of the Jury, and the judgment should be affirmed.

Moncrief, J.

For the purpose of determining this appeal, it must be assumed to be the settled law of this case, “ that when a vessel alongside of a public pier in the City of Hew York, is, accidentally, and without fault of her owner, burned, and sinks to the bottom, near the mouth of the slip or basin, thereby so obstructing the slip and bulkhead as to prevent other vessels coming in; those entitled to the slippage or wharfage, cannot recover for the loss thereof, caused by such obstruction, from the owner of such vessel, without showing that such owner, by due care and attention, could have removed the wreck, or at least have shifted its position so as to prevent its being a cause of injury, and that he is in default for not having done so. That when an insurance company, which has insured an undivided interest in such vessel and has accepted an abandonment made by such insured owner, after the vessel was so burned and sunk, is not liable for loss of slippage or wharfage, caused by such obstruction, it not being alleged that, by due care and attention, it could have been removed. Such piers and bulkheads' are open to the common use of the public, for any purposes connected with the loading, unloading, or repairing of vessels, and securing their cargoes, whether in vessels afloat or sunk, not prohibited by statute or the lawful ordinances of the common council. And such a use, when it neither incumbers the bulkhead or pier, so as to incommode the loading or unloading of vessels, or the passing or repassing of carts, nor in any way injures the structure itself, gives no right of action to the party entitled to slippage and wharf-age. Hence, a use of the slip in attempting to raise the vessel and recover the property in it, especially as such attempt was made at the request of the plaintiffs, creates no liability to make compensation for such use, where there is no evidence showing such use to be wrongful or an invasion of the plaintiffs’ rights, or a violation of any duty which the defendants owed to them.” This was determined at a General Term of this Court, upon the appeal sustaining the demurrer to the original complaint in this action. (2 Bosw., 306.)

The complaint as amended did allege that the wreck, “ the said ship, Joseph Walker, could have been removed with reasonable care, skill and diligence, in a short space of time, to wit, in the space of sixty days from the time when so sunk.” That the defendants, having control and possession of said ship, have conducted themselves so negligently, unskillfully and carelessly, in and about their attempts at the removal of said ship, which they undertook to do, and as was their duty to do, and in and about the bringing into said slip, and sinking or suffering to be sunk and left there of thfe said other vessels or hulks, and in various other acts of negligence, unskillfulness and carelessness in respect thereto, that the plaintiffs have suffered great and lasting injury. That by means, of all which premises, and by said several acts of negligence, nnskillfuliiess and by said other obstructions, brought into said slip by the defendants, and left there, and by injury to the said wharf and pier as aforesaid, and by the said piles driven and left remaining in said slip as aforesaid, and by said obstructions to the passing and repassing of carts upon and over said pier and wharf as aforesaid, and by preventing the entering and loading or unloading of vessels into and alongside said slip, pier and wharf, and by their unnecessary use and occupation of said premises as aforesaid, “ the pier, wharf and slip or basin has been greatly interfered with, and the plaintiffs greatly damaged. " The appellants claim that the action “ is substantially “ for wharfage on the ship Joseph Walker, or for the use “and occupation of the plaintiffs’ premises for not removing her, and obstructing the plaintiffs’ slip and wharf, “ and interfering with their franchise and revenue.”

The only question undisposed of, if any, arises under the amended complaint, alleging that the defendants having undertaken to ■ remove or shift the wreck, have not exercised due care and diligence in not removing the same within the space of sixty days, as with reasonable care, skill and diligence might have been done.

There was no sufficient evidence upon which this could properly be inferred by the Jury in favor of the plaintiffs ; the direction to find for the defendants was therefore correct. (18 N. Y. R., 425.)

It was not suggested in the demand made on behalf of the plaintiffs to go to the Jury, what question if any they should be called upon to pass on; this demand was therefore too broad and comprehensive t'o predicate an exception upon, on a refusal being made. The request to submit questions of fact to a Jury, in analogy to a request to charge the Jury, must be specific, not general. (1 Kern., 61; 2 id., 313; 1 Seld., 422; 3 id., 266; 18 N. Y. R., 558, 565, 566.) To require the submission to a Jury, it is not enough to say that there was some evidence to go to a Jury; there must be evidence upon which they might reasonably and properly conclude that there was negligence on the part of the defendants. (3 Com. Bench, N. S., 146; 8 id., 570, 571.) The evidence introduced, intending to show want of due care, skill and diligence, was all introduced by the plaintiffs; the defendants offered no testimony upon that issue; it must be assumed, therefore, that there is no . conflict of testimony to be examined or explained; there could be no disputed question of fact to pass upon; the contradictions, if any, were caused by the witnesses called and examined on behalf of the plaintiffs. There was, therefore, no disputed fact, and it was the duty of the Oourt to pass upon the question at issue, and determine it in ‘favor of some party; it was a question of law. (2 Hill, 588; 3 Wend., 75.)

The direction in favor of the defendants is abundantly supported by the evidence; it would have been error to refuse it; this Oourt would be compelled to set aside a verdict in favor of the plaintiffs; the proof is overwhelming as to the skill, care and diligence exercised to remove the obstructions.

Again, the direction, to find a verdict for the defendants, could have been put upon the ground, that the defendants were not responsible to the plaintiffs, even if there had been a want of due care, skill, &c.; the contract with Mr. Bell, authorizing him to take possession of the sunken property, with the view to its removal with all reasonable despatch, was made by the owners of the vessel and cargo, Samuel Thompson and nephew, and before the abandonment to the defendants; the latter could exercise no control or direction over Mr. Bell or his servants ; he was not bound to obey or receive the orders of the defendants; while in the performance of this work he was in the exercise of an independent business; the relation of master and servant not existing between the defendants and him who alone could or did cause the injury complained of, the plaintiffs had no cause of action against the defendants. (24 Howard’s U. S. R., 110, 124; 4 Bosw., 140.)

The judgment and the order denying the motion for a nonsuit should be affirmed.

White, J.

I had some hesitation in concurring in the affirmance of the judgment in this action; not because I was disposed to question the legal principles so well stated and reasoned in the opinions already delivered, in favorof affirming the judgment, but because I doubted that, under the facts in this case, those legal principles justified the decisions of the learned Judge, at the trial of the cause. There appeared to me to be some justice in the plaintiffs’ claim for damages or compensation, if the defendants, while occupying the plaintiffs’ dock, were laboring as well for their own profit, in saving the vessel and cargo, as for the public or the plaintiffs’ benefit, in removing the wreck and disencumbering tile slip.

And this view seemed, at first sight, to find support in the testimony of the witness Lewis, where he states that, in the fall of 1854, “he had lifted the vessel so that she might be carried anywhere in the harbor, but that, to make it a sure thing,” he took her further into the slip, and had partially unloaded her, when, fearing the effect of the frost upon the heavy chains by which he held her up, (it being then about the middle of December,) he discontinued operations until the spring, expecting that at that time he would complete the work in a couple of weeks.

This looked, at first, like neglect of duty to the plaintiffs—omitting to remove the vessel out of the slip, when the operator testified “that he might have carried her anywhere in the harbor; ” and it appeared, too, as if the defendants, (or their agents, the wreckers, which is the same thing, in effect,) had ventured on, or assumed the responsibility of this neglect, under the temptation which the state of things then presented—of speedily unloading the vessel and possessing themselves of the cargo, to their own immediate emolument. But further reflection removed this impression. To take the vessel out of the plaintiffs’ slip, and into some suitable location, was the necessity of the case. To take her out of the plaintiffs’ dock and drop her, as an obstruction in the adjacent or other waters of the harbor, would not be a fulfillment by the defendants of the duty which they had assumed to perform, and it is evident that it was apprehension of some such mishap that induced Lewis to lighten the vessel before taking her out of the dock. “To make it,” he says, “a sure thing”—that is, to make the successful removal of the vessel “a sure thing”—he took her further into the dock, to unload and lighten her, but found it necessary, when he had her there, to suspend the work on account of the frost, until the spring. This indicates no negligence or disregard of the plaintiffs’ rights. Even if there were in it an error of judgment, (and it is not shown that there was,) the defendants having committed the work to Lewis, whose ability, skill and experience in business of this character, are proved to be of the firs,t order, they would not be held responsible for an honest error of judgment committed by him in the prosecution of the work. And, except this statement in the testimony of Lewis, and the unsupported and very loose and unreliable opinion or conjecture of one or two unskillful and inexperienced witnesses, there is no evidence whatever upon which a question of neglect could be raised, (and the defendants are only liable for neglect, or want of care,) or upon which any doubt could be suggested that the removal of the obstructions, caused by the sunken wreck, was not, at all times, the object, to the accomplishment of which the efforts of the defendants and their agents were faithfully directed.

To endeavor to save as much as possible of the wreck and cargo, was not incompatible with the entire fulfillment by the defendants of their whole duty to the plaintiffs in this matter; and I do not see that any effort which they made in that direction did interfere with that duty. Ko reasonable plan could be proposed, and no one could, in reason, be required to adopt any plan, for the accomplishment of the expensive and laborious work to be undertaken, that would not embrace the desigu of rendering the wreck and cargo available to defraying, in whole or in part, the necessary expenditures of the work. And if such was the design of the defendants in this instance, it affords no ground for a recovery of damages against them by the plaintiffs; and, besides, there is nothing in the case from which it can be inferred that, if the labor expended was directed solely and exclusively to the removal of the wreck, without any regard to the recovery of the cargo or ship’s materials, the operation would have been more expeditious or successful than it was in reality.

Concurring, then, as I do, in the legal principles to which I have referred in the commencement of this statement, I can see no ground upon which the defendants can be held liable. They were only bound, at the utmost, to exercise due diligence and care; this, I think, they have done. There was no doubtful question in the case, which it was proper or necessary to submit to the Jury, and the direction given to them by the Court, to find a verdict for the defendants, being correct, the judgment should be affirmed, with costs.

Barbour, J., (dissenting.)

The case, briefly stated, is this:

The ship Joseph Walker, while lying at the plaintiffs’ wharf, in Hew York, in December, 1853, with cargo on board, was partially burned, and sunk to the bottom, alongside the wharf, remaining attached thereto by her chain cable, leaving a portion of her hull above the water, and occupying such a position as to exclude all other vessels from access to that part of the wharf in front of which she lay. The injury to the vessel and cargo being more than half their value, they were abandoned by the owners to the defendants, who were insurers, as a total loss, under the policies; and the defendants, thereupon, accepted the abandonment and paid the insurance. The defendants did not abandon the ship and cargo as derelict, but, on the contrary, entered into a contract with a Mr. Bell, an experienced wrecker, providing for the raising of the ship and cargo by him, in consideration of the payment to him of a large per centage of the proceeds to be derived from sales of the same when raised, or such portions thereof as-should be saved. Under this agreement, Bell, and Lewis', who became his partner and succeeded him, made various efforts, more or less vigorous, to raise and save the vessel and cargo. Those attempts were continued, with the exception of some intermissions on account of the weather, until April, 1855; during which period portions of the cargo were taken out, landed upon the plaintiffs’ wharf, and carried away and sold by the contractors, who also used the wharf as a passage way to and from the ship, for their men and materials. In April, 1855, the Mayor of the city, claiming that the vessel was a public nuisance there, forcibly stopped the proceedings of the contractors, took possession of the ship, and entered into a contract with a Mr. Jones, who agreed to. raise and remove the vessel for $13,000, to be paid him by the city; and Jones, thereupon, sub-let the job to others, who undertook to raise and save the ship and cargo, and to receive as compensation therefor 50 per cent of the net proceeds of the vessel, and 62¿-per cent of her cargo. On the 15th of October, 1855, the Mayor again took possession of the ship, and on the 25th or 26th of the same month removed her from the dock; whence she was taken to the Atlantic docks, in Brooklyn. The vessel was then worth $10,000, and her cargo was sold for about $5,000.

It is not necessary to consider the question as to whether the underwriters,.upon the abandonment of the ship and cargo to them, and their acceptance of such abandonment, took the ownership of the same cum onere, so as to become, ipso facto, liable to the performance of all the duties aud obligations touching her future disposition, to which the insured owners were then subject; nor the question as to what the duties and liabilities of such former owners, considering the situation and condition of the ship, were, at that time; for, even if they had the right, at their option, to abandon the vessel and her cargo as derelict, it is quite clear that they elected not to abandon, but to take possession of the vessel; and that for a year and two months after they became the owners, the defendants, through the persons with whom they had entered into a contract and formed a quasi partnership for that purpose, retained such possession and controlled and managed the vessel, not for the purpose of removing her from the slip at the earliest practicable period so as to release the plaintiffs’ wharf from the incumbrance, but with the intention, principally, if not solely, of saving the ship and cargo, with a view to the profit or remuneration to be derived from the sale of the same, to the exclusion of all other vessels from that portion of the .plaintiffs’ wharf, and to the great injury of his business.

If the defendants had abandoned the ship and cargo as derelict, the plaintiffs would have had a right to take possession, either for the purpose of removal as an obstruction to their wharf, or, in case it could be done without injury to others, in order to save the ship and cargo for their own benefit, if they should see fit so to do; and of this right they were deprived by the acts of the defendants and their employees in taking and holding exclusive possession of the vessel, not for the purpose of removing it out of the plaintiffs’ way, but of placing her and her cargo in such a condition as would, and did, enable the defendants to make money.

Tested by the rules of common honesty, it was the duty of the defendants, upon assuming the ownership and control of the vessel, either to remove her from the plaintiffs’ wharf, without unreasonable delay, as a wreck and an obstruction to their business there, or to compensate them for the injury caused by such obstruction. For nearly two years, owing to the failure of the defendants to remove her, the vessel continued to occupy the same position, though partially submerged, in front of the plaintiffs’ wharf, which she filled prior to the accident; and for this the plaintiff is entitled to compensation. In Brown v. Mallett, (5 Com. B. R., 599; S. C., 12 Jur., 204,) a case somewhat similar to this, Justice Maul® said: “ The “liability of the owner is the same whether his vessel be in “motion or stationary, -floating or aground, underwater “or above it; in all these circumstances the vessel may continue to be in his possession and under his management “and controland “if so, he is liable for injuries caused “ by it;” and he repeats,, in effect, that where the control of the ship is retained, liability accompanies it.

The evidence in this case was sufficient, I think, to justify the Jury in finding, as a fact, that the ship could have been removed from the slip in a very short time time if the efforts of the defendants had been directed to such removal merely. One witness, an agent of a wrecking company, and himself a wrecker of considerable experience, says that the ship could have been taken out within two weeks after she was sunk. Lewis, one of the contractors, testifies, that in August, 1854, the ship was actually raised, so that when the tide rose she lifted free and clear; and that he could then have carried her anywhere in the harbor; and I think it may reasonably be assumed from his testimony that his failure to remove her at that time was induced by his desire to take, such further steps as would insure the safety of the vessel and the preservation of her cargo, out of which his compensation was to be derived. Even if this were otherwise, however, it appears to me that under the rule as laid down by Justice Maulé, the plaintiff was entitled to recover upon the evidence as it stood at the time the Judge, upon the trial of this action, directed the Jury to find a verdict for the defendant, or at least that the evidence was sufficient to require a finding of facts by them.

Eor these reasons, I am of opinion that the judgment should be reversed and a new trial granted.

Monell, J. concurred in the dissenting opinion of Barbour, J.

Judgment and order affirmed.


source: Caselaw Access Project

author: By the Court—Bosworth, Ch. J. Barboub, J.

license: Public Domain

text:
    William Tracy, Plaintiff and Respondent, v. The New York & Harlem Railroad Company, Defendants and Appellants.
    1. After an action to recover possession of specific personal property, and damages for its detention, has been commenced by the service of summons, a voluntary talcing of the property, not from the defendants themselves, but by plaintiff’s picking it up .where he chanced to find it, does not extinguish the right of action.
    2. Where the only evidence as to the time of the commencement of the action, was the testimony of the plaintiff, (a lawyer,) that he commenced the action in the morning, and after he had put the papers in the sheriff's hands for service, he found the goods lying in front of defendant's door,
    «and to.ok possession of them, there, about noon, or soon after noon; there being no evidence as to the time of serving the summons; Held, that upon this evidence a verdict for the plaintiff should be sustained.
    3. In an action against a railroad company, where they rely upon a rule established by them for the regulation of business, which the Court instruct a Jury is a legal and valid rule, the rejection of evidence that the uniform usage of other companies is the same, is not error.
    4. In an action to recover possession of specific personal property, and damages for its detention, it is proper that the Jury, on finding for the plaintiff, should assess the value of the property, as well as the damages, although the plaintiff has obtained a delivery before the trial. (Barboub, J., dissented.)
    5. If the ‘assessment of the value were not proper, the Court would not, before judgment, order a new trial on that ground. (Per Bosworth, Oh. J.)
    (Before Bosworth, Ch. J., Moncrief and Barbour, J. J.)
    Heard, April 14, 1862;
    decided, June 21, 1862.
    Appeal from an order denying a new trial, which the defendants had moved for, upon a case and exceptions.
    The cause was tried before the Ohief Justice and a Jury, on the 10th of October, 1861. The facts upon which the action arose, and the defendants’ motion for a nonsuit at the trial, are fully stated in the first portion of the opinion of Barbour, J.
    Upon the trial, the defendants’ president testified that it was their uniform rule that baggage could not be checked, except to points to which the tickets are purchased. Defendants’ counsel then offered to prove that" this is the uniform rule on other roads; this offer being objected to and excluded, the defendants excepted.
    The defendants’ attorney furnished to the Court on the argument of this appeal, printed cases, copies of which had been served on the plaintiff’s attorneys, and which had, written in them, a paper purporting to be the Sheriff’s return of the service of summons on the defendants on a day sub-: sequent to the one on which it was delivered to the Sheriff, and on which the plaintiff took possession of the trunks. The plaintiff’s counsel objected to such written paper being considered as part of the papers on the appeal, and the Court ruled that it be disregarded, as no part, of the case.

      Charles W. Sandford, for defendants, appellants,
    argued the several questions passed on in the opinions of the Court; and, as to the point that plaintiff must show that defendant unlawfully still holds possession, cited Elwood v. Smith, (9 How. Pr. R., 528,) Roberts v. Randel, (3 Sandf. S. C. R., 707; 5 How. Pr. R., 327,) Brockway v. Burnap, (8 How. Pr. R., 188.)

      William Curtis Noyes, for plaintiff, respondent,
    reviewed the evidence and exceptions, and cited, in opposition to defendants’ authorities, Van Neste v. Conover, (20 Barb., 547.) Also to the point that the action was commenced by delivery of the papers to the Sheriff, Gregory v. Weiner, (1 Code R., N. S., 210.)
   By the Court—Bosworth, Ch. J.

Ho exception was taken to the charge except “to all that part of the charge in relation to the value of the property and damages.”

It is objected on this appeal that it was error to direct the Jury to find the value of the property. It is proper, in an action of this kind, that the Jury should assess the value of the property, though the plaintiff has obtained a delivery of it. (Code, 304, sub. 4.) The value of the property recovered affects the question of costs when the damages recovered do not amount to fifty dollars; and even if it did not, and if the judgment should be for the damages assessed, and only that, the assessment of the value would be an idle ceremony," not prejudicial to either ■party. The judgment is not entered, and when entered (if the plaintiff succeeds on this appeal) it must be entered in proper form.

The verdict cannot be set aside as contrary to evidence. The Jury, in finding for the plaintiff, have merely credited positive testimony. It cannot be- said that they erred, because they believed it, or -have found without, or contrary to evidence.

There was no error in rejecting the testimony as to the uniform usage of other roads, as respects the delivery of baggage. The Jury were instructed that the rule adopted by this road on that subject was legal and valid; and whether all other roads had made and enforced the same rule was wholly immaterial.

There is no ground on which the defendants can succeed, unless it be that first stated as the basis of their motion for a nonsuit.

On the facts found by the Jury, a causé of action accrued to the plaintiff, on the refusal to deliver his baggage to him at Golden’s Bridge, and carrying it thence to Hew York. That cause of action has never been released or otherwise extinguished. It accrued on the 14th of August, 1860. The plaintiff testified, without objection, -that he commenced the action the next morning, and after he had placed the papers in the hands of the Sheriff’s officers for service, he went up town, found his trunks, outside the door, under the arch that goes into the depot, and sent Mr. Smith for an expressman, who took them to his house.

■ George J. Smith testifies that he went to the Sheriff’s office with Mr. Tracy, and awaited there until the papers were delivered to the Sheriff for replevying the baggage, and then went up with Mr. Tallmadge and Mr. Tracy to the station, about three-fourths of an hour after delivering process at the Sheriff’s' office.

There is no cross-examination to show what the plaintiff had done before he found his trunks, which he testified amounted to commencing the action. Whether in his view of the fact which he affirmed, it included service of the summons or not, he was not asked to disclose. He swore that he found the trunks after he commenced the action, and there was no evidence offered to explain or contradict this testimony.

Chapter II, of title VU, of part H of the Code, having the statutory title: “ Claim and delivery of personal property,” authorizes a plaintiff in an action to recover possession of personal property, to “ claim the immediate delivery of such property, either at the -time of issuing summons, or at any time before answer, as provided in that chapter.”

We must infer from the evidence of the plaintiff and Mr. Smith, that all the papers were executed in due form, and delivered to the Sheriff, which were essential to perfect that claim, and impose on the Sheriff the duty to take the property and deliver it to the plaintiff.

This proceeding is declared to be a provisional remedy, (title VII,' part II of the Code,) and when all the papers requisite to perfect a plaintiff’s right to it, and have it enforced, are prepared and placed in the Sheriff’s hands, for the purpose of executing the remedy, it may be said that the provisional remedy is allowed.

And by § 139 of the Code, the Court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings, from the time of the service of the summons, or the allowance of a provisional remedy. (Burkhardt v. Sanford, 7 How. P. R., 329,)

It is by no means clear, therefore, that taking possession of the property a few hours, or a day before actual service of the summons, would be a bar to the action, the possession having been taken after the summons, and the papers making it the Sheriff’s duty to take and deliver the property of the plaintiff, had been placed in his hands to be executed.

However this may be, it is quite clear that a voluntary taking of the property after the service of the summons, not from the defendant himself, but by picking it up where the plaintiff chanced to find it, does not extinguish his right of action, although it may affect the question of damages for the detention.

And the defendants are not in a condition, upon the testimony as it is presented to us, which enables them to say, that it is proved that the property was voluntarily reduced to possession by the plaintiff before the summons was served. The plaintiff, who must be presumed to know what is the commencement of a suit, testifies without objection, and without being asked to make further explanation, that he found and took his trunks, after he had commenced the action.

I think the order should be affirmed.

Barboub, J.

This action was brought by the plaintiff to recover the possession of his baggage claimed by him to be wrongfully withheld horn him by the defendants, and for damages sustained by the detention.

Upon the trial, evidence was given by the plaintiff sufficient and uncontradicted, to establish the following facts:

In August, 1860, the plaintiff, with his wife and two daughters, got on board the cars of the Western Railroad Company at Troy, with their baggage, with the intention of going to Golden’s Bridge, a station upon the Harlem railroad, between Albany and Hew Tork. Upon arriving at East Albany the plaintiff went to the car containing his trunks, and requested the man in charge to give him checks for them for Golden’s Bridge, and was informed by the baggage-master that checks could not be given to him for the reason that the office was not yet open. The baggage-master, however, told him that the trunks were all marked for Golden’s Bridge; that he could get tickets from the conductor upon the cars, and that checks would then be given to him. After the cars started he applied for tickets for Golden’s Bridge, to which the conductor replied, that he could not sell tickets for Golden’s Bridge, but added, “ I can do better for you; I have through tickets to Yew York, and can sell yon a through ticket, which will answer the purpose just as well, and will not cost any more;” and at the same time told the plaintiff that the usual price of tickets was one dollar greater to Golden’s Bridge, thence to Yew York; and, therefore, the plaintiff took and paid for the four tickets for Yew York. It was shown that the roads of the two companies connected at Chatham, and that their custom was to sell tickets for passage over each other’s roads. On arriving at Chatham, the plaintiff again asked for checks, when the baggage-master, upon looking at"the tickets said, “ I cannot give you cheeks upon these tickets, but your baggage is marked all right; you will get it at Golden’s Bridge.” Shortly after leaving Chatham, the conductor of the 'Harlem road took the plaintiff’s tickets, and gave him conductors’ checks for them. The plaintiff afterwards told the conductor that he wished Ms baggage ready for delivery at the bridge, when he was told by the conductor that, inasmuch as his tickets were for Yew York, the trunks could not be given to him at Golden’s Bridge, unless he would pay two dollars extra; and although the plaintiff stated to him the circumstances attending the purchase of the tickets, and again demanded the trunks at Golden’s Bridge, the conductor persisted in his refusal to deliver, and carried them through to Yew York. The plaintiff followed in another train, and on the morning of the next day commenced this action. About noon of that day the plaintiff finding his trunks at the defendants’ depot in Yew York, took possession of them. Another witness states positively that it was between one and two o’clock when the baggage was recovered. .

After this evidence was given, the defendant moved to dismiss the complaint, upon the ground,

First. That a suit for the delivery of personal property, cannot be maintained when the goods have been received by the plaintiff before the service of process; and,
Secondly. Because the defendants had a right to establish the rule that baggage would be delivered only at the place to wMch tickets were purchased; that the plaintiff was informed of this rule before reaching Golden’s Bridge, and could have received his baggage there, by paying the regular fare, which he refused to do.

The first of these objections was not well founded. Without considering the question as to whether actions of this character are not commenced by the issuing of the summons to the Sheriff, it is sufficient to say that no evidence had been given, tending to show that, when the property was received by the plaintiff, the summons had not been served; but, on the contrary, it had been proved by the testimony of the plaintiff, who is himself a lawyer, that the action was commenced in the morning, and the evidence showed that the trunks had been taken possession of by the plaintiff, after the morning had expired.

Hor can the second objection be sustained. It is true that the defendants had as perfect a right to establish the rule in question, as all corporations and individuals have to adopt such rules, not contrary to law, as they may deem fit and proper for their own government; but no rule in restriction of the rights acquired by passengers, under the contract to carry them which is to be implied from the purchase and sale of their tickets, or even from their taking seats in the cars of railroad companies, who are common carriers, can affect such rights, unless the other contracting party has notice of such rules, so that it may clearly be inferred that his contract is made subject thereto.

In this case, the rights of the plaintiff rest upon the contract which.is to be’ implied from the sale of the Hew York tickets to him, with the understanding, on the part of the conductor and himself, that such ticket should be good for a passage for him and his family, and, of course, their baggage, to Golden’s Bridge; and there was no evidence tending to show, at the time the motion was made; that the plaintiff had any knowledge of the rule.

The Judge ruled correctly in rejecting the testimony offered by the defendants touching the usage of other roads in respect to the delivery of the baggage, as it was wholly irrelevant. Indeed, if admitted, it would only have tended to show that the rule of the defendant, in this regard, was proper; and the Judge, in his charge, went beyond that, and instructed the Jury that the rule was a reasonable and proper one. The defendants, therefore, were to no extent prejudiced by the exclusion of the evidence offered.

The verdict is fully sustained by the evidence, with the exception of that part of it which assesses the value of the property; which, as such property had been returned to the plaintiff before the trial, and was not claimed by the defendants, I consider erroneous.

The verdict is such a one as ought to and would have been rendered, if the property had not been returned to the plaintiff. As it now stands, the plaintiff is entitled to a judgment for 1,025 dollars, and it will be the duty of the clerk, unless other and further directions shall be given by the Court, to enter a judgment for that amount, and to tax and include therein costs accordingly. (Code, § 264.) This appears to me to be sufficient to show that the verdict ought not to be permitted to stand, without considering the question as to the power of a Judge to direct the entry of a judgment which does not conform in legal effect and intendment to the verdict, and the whole of it.

The Legislature, in providing by section 261 of the Code for the assessment of the value of the property, when the verdict is in favor of the plaintiff, and such property has not been delivered to him, have, by necessary implication, debarred an assessment where it has so been delivered. Expressio unius est exclusio alterius. (See also Code §§ 260, 262, 264, 277; Archer v. Boudinet, 1 Code Rep., N. S., 372; Rockwell v. Saunders, 19 Barb., 474; Woodburn v. Chamberlain, 17 Id., 446.

The provision in the 304th section, sub. 4, of the Code, it seems to me, is in strict accordance with the other sections above cited, and merely designates the persons by whom the value of the property is to be assessed, in case an assessment shall be necessary under the 261st section.*

For these reasons I am of opinion that the verdict should be set aside, and a new trial granted, unless the plaintiff shall, within twenty days from the service .of the order to be entered herein, stipulated in writing that he will take a a judgment of twenty-five dollars (being the damages awarded) and the costs to which he will- be entitled; in which case judgment to be entered accordingly.

Ho costs should be awarded to either party upon this appeal.

       Since this opinion was written, I have examined the amendments to the Code adopted at the last session, and find my views still further confirmed, by the fact that the Legislature have deemed it necessary to provide for cases of this character in future, by an amendment to the 4th sub. of § 304.


author: By the Court—Bosworth, Ch. J.

text:
    Jane G. Phelps, Executrix, &c., of Anson G. Phelps, Jr., deceased, Plaintiff and Respondent, v. The Gebhard Fire Insurance Company of the City of New York, Defendants and Appellants.
    1. Executors, to whom real property is devised by their testator’s will, have an insurable interest therein by virtue of the trust; and where the insurers issue a policy to the testator in his life time, which does not require him to show that he was owner in fee, nor forbid an assignment of the property, and after his death they-renew the insurance in favor of his executors, without inquiry or representations as to their interest, the executors may recover thereon, although before the rertewal their interest has been, without the knowledge of the insurers, but in good faith, changed to a mortgage interest, by their selling the property, and taking back, at the same time, a purchase-money mortgage.
    2. Thus, where an insurance company of the City of Hew York, insured a resident of the city upon a house, described as “his dwelling house ” in another state, but without any representations or inquiries as to its occupancy, or as to the nature of his interest; and after his death, of which they were informed, they issued to his executors, also residents of Hew York, áldessive annual renewal receipts, in the name of the estate or of the executors, and before the last of such renewals, which was given to the sole surviving executrix, she, in good faith, but without notice to the company, had sold the property, taking back a purchaser-money mortgage:

      Held, 1st. That under these circumstances, and upon a fair construction of the provisions of the policy, a change in the nature or extent of the insured’s interest in the property would not invalidate the policy, the interest having been continuous and the risk not increased.
    2d. That his death did not terminate the policy.
    3d. That the renewals having been granted to the executors, without inquiry or representations, the company must be held to have insured such interest in the property as had become vested in the executors by the will, and by their acts as executors; and that the surviving executrix was entitled, by virtue of her interest as mortgagee, to recover, upon a loss.
    (Before Bosworth, Ch. J., and Barbour and Monell, J. J.)
    Heard, April 21, 1862;
    decided June 21, 1862.
    The plaintiff brought this action upon a policy of fire insurance and successive renewals thereof issued by the defendants.
    By the original policy, which was issued to the plaintiff’s testator, in his lifetime, the defendants insured him “ against loss or damage by fire, to the amount of one thousand dollars, viz.: $500 on his frame dwelling house, and $500 on his frame barn, situate about two and a half miles distant from the town of Dover, Morris county, Sew Jersey.” And the company thereby agreed “to make good unto the said insured, Ms executors, administrators and assigns, all such loss or damage, not exceeding in amount the sum insured, as shall happen by fire to the property as aboye specified during one year.”
    After testator’s death the policy was renewed from year to year, by renewal receipts, given to the plaintiff and her co-executor. Before the last of these receipts was given, the co-executor died, and the plaintiff, as executrix, sold and conveyed the property insured, and took back a mortgage to secure a part of the purchase-money; after which the dwelling house insured, was burned. The plaintiff,, on demanding payment of the loss, offered to assign the-mortgage to the company, but they refused to pay, on the ground that the change in the interest was without their knowledge or assent.
    The provisions in the policy and in the conditions annexed, which they relied on, and the only provisions having any bearing upon the question, were the following: “ This insurance [the risk not being changed] may be continued for such' farther term as shall be agreed on, provided the premium therefor is paid and indorsed on this policy, or a receipt given for the same.”
    “ The interest of the insured in this policy, is not assignable, unless by consent of this corporation, manifested in writing; and in case of any transfer or termination of the interest of the insured, either by sale or otherwise, without such consent, this policy shall from thenceforth be void and of no effect.”
    “ If any person insuring any building or goods in this office, shall make any misrepresentation or concealment; or if, after insurance is effected, either by original policy or by the renewal thereof, the risk shall be increased by any means whatever within the control of the assured; or if such building or premises shall be occupied in any way so as to render the risk more hazardous .than, at the time of insuring, such insurance shall be void and of no effect.”
    “ Property held in trust, or on commission, must be insured as such, otherwise the policy will not cover such property; and in case of loss, the names of the respective owners shall be set forth in the preliminary proofs of such loss, together with their respective interests therein. Goods on storage must he separately ancl specifically insured.

    “ If the interest in property to be insured be a lease-hold interest, or other interest not .absolute, it must be so represented to the company, and expressed in the policy in writing, otherwise the insurance shall be void.
    “ Hote.—By ‘ property held in trust,’ is intended, property held under a deed of trust, or under the appointment of a Court of law, or property held as collateral security; in which latter case, this company shall be liable only to the extent of the interest of the assured in such property.” “ Insurances once made may be continued for such further time as may be agreed on, the premium required therefor being paid and indorsed on the policy, or a receipt given for the same; and all insurances, original or renewed, shall be considered as made under the original representation, in-so far as it may not be varied by a new representation in writing, which in all cases it shall be incumbent on the party insured to make, where the risk has been changed, either within itself or by the surrounding or adjacent buildings; and if, at or before the time of renewing any policy of insurance on property where the risk has been increased by the erection of buildings, or by the use or occupation of the premises insured or of the neighboring premises, the assured shall fail to give information thereof, said policy and renewal shall be void and of no effect.”
    - By Ms will the testator devised the rest, residue and remainder of his real and personal estate, (including the premises on which .the buildings insured by the defendants were erected,) to his executors, who should qualify, in trust to manage,' sell and convey the same, for the purposes in the will named, and gave an absolute power of sale to such of his executors as should qualify.
    The cause was tried before Mr. Justice Barbour and a Jury, on the 13th of January, 1862; and at the close of the trial the Oourt directed a verdict for the plaintiff. The defendants duly excepted, and now appealed from the judgment entered on the verdict.

      Bowen Whiting, for defendants, appellants.
    I. The only interest insured by the policy was that of Anson G-. Phelps, as owner of the fee.
    The renewals, from the necessity of the case, as well.as their own terms, operated simply to keep the original insurance in being, as to all its incidents. (Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. R., 305.)
    II. Plaintiff had no insurable interest, except as executrix, vested with the fee.
    As mortgagee she took simply a chattel interest, and "all the interest and estate wMch was insured she had formally conveyed, with warranty, at the time of the last renewal. (Curtis v. Leavitt, 1 Smith, 9.)
    III. Plaintiff having conveyed and taken a mortgage, without notice to or consent of the defendants, the policy, "by its terms, became void. (Grosvenor v. The Atlantic Fire Ins. Co. of Brooklyn, 17 N. Y. R., 391; Dey v. Poughkeepsie Mut. Ins. Co., 23 Barb., 623; McLaren v. The Hartford Fire Ins. Co., 1 Seld., 151; Smith v. Saratoga M. F. Ins. Co., 1 Hill, 497.)

      John M. Mason, for plaintiff, respondent.
    I. The last certificate was a renewal of the original policy,, and the interest of Mr. Phelps, which was absolute, continued so in his devisees under the will, to the extent of their mortgage interest. The granting of a deed and taking back a mortgage did not change the nature of the insurable interest, to the extent of the mortgage. (Ellis on Fire Ins., [Shaw’s ed.,] 69; Etna Ins. Co. v. Tyler, 16 Wend., 397; Gordon v. Mass. F. & M. Ins. Co., 2 Pick., 249; Jackson v. Mass. Mut. Fire Ins. Co., 23 Id., 18; Tittemore v. Vermont Mut. Ins. Co., 20 Vt. R., 546.)
    II. If the policy became void, the certificate was a new insurance of the interest of the executrix, whatever that might be, whether owner or mortgagee.
    III. It is not necessary that any representation should be made as to the interest of the insured, if no inquiries are made. (Pars. Merc. Law, 509; Traders’ Ins. Co. v. Robert, 9 Wend., 404; Locke v. N. A. Ins. Co., 13 Mass. R., 61; Williams v. Smith, 2 Cai., 253; Niblo v. N. A. Ins. Co., 1 Sandf. S. C., 551; Etna Ins. Co. v. Tyler, 16 Wend., 388; Kernochan v. N. Y. Bowery Ins. Co., 5 Duer, 1; 17 N. Y. R., 428; Turner v. Burrows, 5 Wend., 546; Ellis on Fire Ins., 69; Bartlet v. Walter, 13 Mass. R., 268.) If the insurer deems it material to know the interest, he should make special inquiries. (Strong v. The Manf. Ins. Co., 10 Pick., 40; Fletcher v. Commonwealth Ins. Co., 18. Pick., 419; Niblo v. N. A. Ins. Co., 1 Sandf. S. C., 551.)
   By the Court—Bosworth, Ch. J.

At the date of the policy (December 4,1857,) the assured resided in the City of Hew York. The policy does not so state, nor is the fact directly proved. He died on the 18th of May, 1858, having left a last will and testament, which was duly proved before the Surrogate of the County of Kew York, and letters testamentary were issued thereon to the execu-. trix and executor therein named, July 30th, 1858. The plaintiff and John L. Mason, (since deceased,) qualified as executrix and executor. The fact of the residence of all these parties in the City of Hew York was so well known that no mention appears to be made of it, either in the policy, pleadings, proofs, or points made on this appeal. Of course the insured property was not supposed to be occupied by the testator personally when the policy was made, but it'was known that it was not.

It does not appear that any representation was made that the testator owned it in fee, nor does it appear that any questions were asked on the subject. The description of the property, in the policy as “ his frame dwelling house” and “Ms frame barn,” would not in case of a loss in his lifetime, make it indispensable to his right to recover, that he should prove he owned them in fee. (The Ætna Fire Ins. Co. v. Tyler, 16 Wend., 385.)

His death did not terminate the policy. (Burbank v. Rockingham Mut. Ins. Co., 4 Foster, 550.) If he had conveyed the property in his lifetime, taking back, eo instanti, a mortgage to secure the purchase-money, he would, notwithstanding, have had a continuous interest in the property. That fact would not have forfeited the policy, under the clause, which declares that “in case of any transfer or termination of the interest of the insured ” in tMs policy, “ either by sale or otherwise,” without the consent of the corporation, manifested in writing, “this policy shall from thenceforth be void and of no effect.” The provision in this policy, on this subject, is in the words of that in Smith v. Saratoga M. F. Ins. Co., (1 Hill, 497,) and it was there construed to refer to a transfer of interest in the policy» and not to a change of interest in the property insured.

Hor would a conveyance by the assured in his lifetime, and taking back, eo instanti, a mortgage to secure the purchase-money, have been a bar to a recovery, in case of a subsequent loss in his lifetime, and during the term for which the property was insured. (Morrison v. Tennessee M. & F. Ins. Co., 18 Missouri, 262; Norcross v. Insurance Companies, 17 Penn. St., 429.)

There is no provision in the policy which, in terms, declares that it should, in such a contingency, become null and void. On general principles, the fact of a change in the nature or extent of the assured’s interest in the property, would not invalidate the policy, the interest having been continuous, from the inception of the policy to the time of the loss, and the risk not having been increased.

We think that the rights of the present plaintiff to recover, are quite as clear, if not more free from doubt, than those of the testator would have been were he living, and a certificate of renewal had been issued to him after conveying, and taking a mortgage of the premises to secure the purchase-money, and a loss had occurred after such renewal.

After the death of the testator, and on the third of December, 1858, the company issued a certificate of the renewal of the policy for one year, on a receipt of the premium therefor, from “ the-estate of Anson G. Phelps, Jr.”

On the 30th of November, 1859, a further or second certificate of a renewal of the policy for one year from the fourth of December, 1859, was executed and delivered, on a receipt of the premium therefor from “ Mrs. Jane G. Phelps, Executrix, and John L. Mason, Ex'r of A. G. Phelps, Jr.”

On the 3d of December, 1860, (John L. Mason having died in the meantime,) the company issued a further certificate of the renewal of the policy for one year from the 4th of December, 1860, on the receipt of the premium therefor “ from Mrs. Jane G. Phelps, &c.”

The loss occurred on the 14th of February, 1861.

Ho representations were made, and no questions were asked at the time of either renewal, as to the nature or extent of the interest designed to be protected by extend ing the policy and continuing it iu force.

The company knew that Anson G. Phelps, Jr., was dead, and the renewals' were not granted, to keep him insured on property owned by him in fee; whether the estate had been devised by his will, to his executors, in fee, upon specified trusts, or whether they had been clothed with authority to sell, and had exercised that authority, and in so doing had taken a mortgage to secure the purchase-money, "the company did not consider it important to inquire. The plaintiff did not misrepresent, and has not practiced bad faith, and has done nothing subsequent to any renewal to increase the risk.

Since the renewal granted to “Mrs. Jane G. Phelps, &c.,” alone, there has been no change in her condition as to the property; she was then a mortgagee of the premises, under a mortgage to her as executrix, and continued to be such up to the time of the loss.

Executors, as such, are merely representatives of the personal property of a deceased; as mere executors, they have no interest in or control over the real estate of their testator. When property is devised to executors in trust, they act quo ad hoc as trustees, and account for their acts in regard to the real estate so devised, as trustees, (2 R. S., 82, § 6; Id., 94, §§ 65 and 66.) By chap. 272, of the Laws of 1850, the powers of the Surrogate were extended, in the matter of settling the accounts of trustees created by a last will and testament.

Whatever may be the legal effect of granting the several renewals, under the circumstances under which they were made; and whatever may be the obligation thereby imposed on the insurance company, there are no words found either in the policy or in the renewal certificates which, (being construed in their usual acceptation,) declare in terms, such legal effect, or the nature and extent of such obligation.

Looking at the parties intended to be insured by the graht of the renewal certificates, and considering the facts, that executors merely as such, can have no interest in the real estate owned by the testator at the time of his decease, but may be made by the will trustees of the real estate, with a power to sell on credit, or may be invested with a naked power to sell and convert, and to sell wholly or in part on credit, and that no representations were made or questions asked; the insurance company must be deemed to have intended to insure, and to have insured such interest in the real estate in question as had become vested in the executors by the terms of the will, and 'by their lawful acts in the due exercise of the powers conferred on them thereby and the grant of letters testamentary to them thereon.

The risk originally taken not being increased by this construction of the policy, and this construction not being opposed to anything expressed in it, or by the fair import of either of its provisions, this construction should be maintained, as obviously conforming to the intent of the insurer and insured, manifested by their acts and thé' circumstances under which they were performed.

The judgment should be affirmed.


author: By the Court —Bosworth, Ch. J.

text:
    Bernhard Benson, Plaintiff and Respondent, v. The New Jersey Railroad and Transportation Company, Defendants and Appellants.
    1. In an action against a carrier of passengers, to recover damages for a failure to carry the plaintiff within the appointed time, to the place for which he had taken passage, by reason whereof he did not perform his errand there, and was detained at expense, and to the injury of his business at home, he must produce some evidence that if he had arrived at the appointed time he might have done his errand and would have promptly returned, or that he could not, with due effort, accomplish his errand by reason of his delay in arriving. Nor can the plaintiff, in such action, recover his expenses and the. damages to his business during a sojourn of several days, without some proof as to the time when he first ascertained that he could not accomplish his errand, and might, therefore, return.

      2. The fact that his errand was to receive a loan of money, previously promised to him, and that, not receiving it, he was without money for the expenses of returning until he received it from home, is not enough to show a necessity for delaying his return, if he made no effort to borrow, and does not show that there was any difficulty in his doing so.
    (Before all the Justices.)
    Heard, May 24, 1862;
    decided, June 21, 1862.
    This was an appeal by defendants from an order denying a new trial of the cause, and from the judgment entered for plaintiffs, on the verdict in their favor, which they recovered at a trial before Mr. Justice Moncrief and a Jury, on the 2d and 4th days of December, 1861.
    The facts sufficiently appear in the opinion of the Court.

      Edgar S. Van Winkle, for defendants,
    (appellants,) as to the point that the damages claimed were not the necessary and natural result of any breach of the contract, cited Griffin v. Colver, (16 N. Y. R., 489,) Masterton v. Mayor, &c., (7 Hill, 61,) Blanchard v. Ely, (21 Wend., 342;) 2 Pars, on Cont., 432, 467; 1 Chit. Pl., 332, 370, 395; Bedell v. Powell, (13 Barb., 183;) Crain v. Petri, (6 Hill, 522;) Viner’s Abt., Damages; 1 Chit. Pl., 370; Loker v. Damon, (17 Pick., 284, ( Peters v. Whitney, (23 Barb., 24,) Blanchard v. Ely, (21 Wend., 342;) and see 13 Wend., 611; 4 Sandf., 514; 3 E. D. Smith, 144.

      L. E. Bulkeley, for plaintiff, (respondent.)
   By the Court —Bosworth, Ch. J.

The Jury rendered a verdict in favor of the plaintiff for $108.75. This is made up of 75 cents extra fare, $8 for plaintiff’s expenses, at $2 a day, for four days, in Philadelphia, and $100 for the loss of profits in his business, four days, at $25 per day.

The plaintiff testifies that he received a telegraph despatch to meet a party in Philadelphia before seven o’clock p. m., of a day named. That, by reason of not being carried in the train for which he had bought a ticket, he arrived there about half-past nine. His testimony is: “I had to remain there till Saturday, being too late to meet the party that evening; the next morning, about ten o’clock, I went to the place to see the parties, but I could not, on account of a death that took place the night 'previous,— so I was informed by the lawyer.”

Again, he says, that he went to negotiate a loan on some property in that place which had been “ willed” to him. His testimony is: “ That is what I went for; I had been there before, trying to do so, and the parties agreed to loan the money, and I was to go there that afternoon and get it; we had seen each other previous, and they telegraphed me to meet them; the name of the man was Lyons ;* * he never loaned it; I stayed in Philadelphia till I got money to go home; I would have gone before if I had had the money.”

There is no proof nor any ground for presuming that the plaintiff would have seen the parties on the day he reached Philadelphia, if he had arrived at seven 'p. ar., instead of nine and a half p. M. If a death in the family of those parties occurred that evening, (the only evidence of which was hearsay,) and for that reason he could not see them the next day, there can be no presumption that he could have seen them between seven and nine and a half p. m. of the previous evening. He does not appear to, have made any effort to see them, and relied on the information of some one, which may have been incorrect. He failed to procure the loan he went to negotiate. He concedes he did not remain four days on that business, and does not state on what day he ascertained that no loan could be procured. He says he would have returned sooner if he had had money to pay his expenses there and home.

Without any proof that he could have seen the parties he went to see on the day of his arrival, provided he had arrived at seven instead of nine and a half p. m. ; without any proof that he failed to procure a loan, by reason of his later arrival, and without proof as to when he first saw those parties and ascertained that no loan would be made, he recovers $100 for the loss of profits in his business, for four days, and eight dollars for his expenses those four days, at $2 per day.

He admits he did not attempt to borrow the small sum necessary to pay his expenses there and pay his passage home, nor suggest that there was any difficulty in the way of his borrowing it, if he had desired to do so.

While his delay there was caused by no necessity, and was continued merely because he preferred to wait until he received money from Hew York, rather than borrow it there, he cannot subject the defendant to the loss of his accustomed profits in his business. There is not, in such a case, any necessary or natural connection between such loss and the failure of the defendant to carry him to Philadelphia in the train for which he purchased his ticket.

On the evidence, as it stands, he was not entitled to recover the item of $100, (loss of profits,) nor his expenses for four days, at $2 per day.

Without proof that the parties he went to see would have seen him on the day of his arrival, provided he had been there at seven p. ar., and in that event he would have returned the same evening or the next day, it is difficult to perceive on what ground he can recover anything for loss of expenses.

In this view the verdict is against evidence and the law of the case, as stated in the charge of the Judge, and the judgment and order should be reversed, and a new trial granted, with costs to abide the event. (Knapi) v. Curtis} 9 Wend., 60.)

Ordered accordingly.