Aikin v. Westcott (123 N.Y. 363, 1890)

Peckham, J.

The only question in this case as the plaintiffs concede, is whether there was any evidence to show that the express company actually received into its custody the trunk in controversy. Upon the undisputed evidence, we are of the opinion that no delivery of the trunk to the express company was shown.

We may assume that the trunk reached the city of Hew York at the same time as the other one which was checked with it at Detroit for the same destination. They both reached the Grand Central depot .in the city twenty-four hours earlier than did the person who had procured them to be checked and who was an employe and agent of the plaintiffs. He stopped over for a day in Buffalo.

It cannot be disputed that when baggage is transported by rail and inside a baggage-car, and arrives under the roof of the Grand Central depot in the city of Hew York, it is still in ■the custody and control of the railroad company which has transported it. These trunks were taken out of the. Central-Hudson baggage-car upon its arrival at the Grand Central station by employes of the express company, but such trunks were not by that act taken out of the custody and control of the railroad company. On the contrary they were left at the Grand Central depot at the incoming baggage-room where all baggage is delivered, and although they were taken out of the car by employes of the defendant, they were left under the control and in the possession of the railroad company in itsowndiaggage-room in the depot. There they would ordinarily remain like other baggage until called for by some one®who had checks for them.

When the trunks were thus taken out of the car at Hew York, the plaintiffs’ agent, who had procured them to be checked at Detroit, still had the checks with him at Buffalo where he-was remaining for the day, and it cannot be pretended from the evidence that the defendant at that time had any right to' their possession whatever.

The next day the plaintiffs’ agent left Buffalo on the Central-Hudson railroad for Hew York, and at Poughkeepsie an agent of the defendant boarded the train, and as the train was going around Peelcskill curve, which would be about ten minutes past eight in the evening, he received the checks from plaintiffs’ agent for the purpose of thereby obtaining the baggage, and delivering it at plaintiffs’ place of business in Maiden Lane the next day. The agent of the defendant after lie received the checks went' to the baggage-car to find the trunks, and not finding them went back and told the plaintiffs’ agent of that fact, and was informed by him that they had preceded him twenty-four hours. About seven minutes after the arrival of the train at the depot in Hew York, the express messenger made search for this trunk, and there Was a thorough search made at that time and the trunk could not be found, and was not found thereafter by the defendant or its employes so far as appears. It was seen some time subsequently at police headquarters, and a man was convicted in Hew York for stealing it. There is no evidence positively identifying this trunk as ever having been found in the baggage-car at New York or taken out of it and placed in the baggage-room, but I think both facts might be inferred from the evidence by a jury, and I have assumed them.

The only evidence which looks towards proof of a delivery •of the baggage to the defendant, is that of the witness Delaney •and that falls far short of proving that fact. He was an employe of defendant, it is true, and he and other of its employes ■assisted in taking all the baggage which came in the depot from incoming trains and then a tab was put on it. But after this was done, the baggage was taken to the railroad baggage-room, and whoever brought a check was given the baggage to which its corresponding check was attached. It might be the ■owner personally who came, it might be his private servant,