Lewis v. Van Horn , 53 N.Y.S. 546 ( 1898 )

Olcott, J.

This action was brought to recover the sum of $272 for the loss by the defendants of two packages of goods, which were delivered to them for delivery in Brooklyn, as plaintiff alleges. The answer is a general denial.

The evidence showed that the defendants conducted an express business under the name and style 'of the Hew York Dispatch & Delivery Company.

The plaintiff testified that he delivered to an expressman, in charge of an express wagon bearing the name of the New York Dispatch & Delivery Company, three packages of goods to be delivered respectively to R. Goldsmith, S. Levine and Bernstein; that the package consigned' to Bernstein was delivered; that the package containing clothing, valued at the sum of $136 and consigned to Levine, .and the package containing clothing valued at $136' and consigned to Goldsmith, were not delivered; that the express Wagon was the one which called at the plaintiff’s place every night for the goods to be delivered; that he always used defendant’s company to ship goods to Brooklyn, and that, at the time of the delivery of the goods to the expressman, the expressman signed a receipt on a form used by the New York Dispatch & Delivery Company; that immediately after discovering the loss of the packages consigned to Goldsmith, plaintiff notified the defendants and left wifh them the receipt he received at' the time he made a de-. livery of the goods to the expressman, and that thirty days after-wards he again notified the defendants’ company that he had then discovered the loss of the package consigned to Levine.

The defendants testified that not only two of their employees,, namely Rush and Bennett (both of whom testified that they had not received the lost goods) had charge of the route in which the plaintiff resided]., but, it appeared on the cross-examination of the witness Bennett, that another man was also in the employ of the defendants’ company who had also signed receipts for shipment of goods, which he received from the plaintiff for delivery by the defendants’ company.

The defendant Van Horn testified that he received all the goods that came in the office and kept all the records of such goods, and that he had never received nor recorded the goods in question. And other testimony was given with the view of showing that the-goods were never delivered to nor received by the defendants.

At the close of the plaintiff’s case, a motion to'dismiss the complaint was made.

It was properly denied, because taking the evidence in its most favorable aspect for the plaintiff, and conceding him all the inferences of its legal import, it was impossible to say .that the jury would not have been justified in finding for the plaintiff.

Beside, the motion to dismiss the complaint was not renewed at the close of the entire case, there was no motion made- fof a direction nor were there any exceptions taken to the charge of the trial' justice, nor were any requests to charge submitted to him by the counsel for the defendants.

There was, therefore, an “ unequivocal ” concession on his part that there was a question of fact in the case which should be passed upon by the jury and that there was some evidence tending to support the respondent’s cause of action. Kraetzer v. Thomas, 23 Misc. Rep. 329.

Ro other questions being presented for review, the judgment and order appealed from should be affirmed, with costs.

Conlan and Schuchman, JJ., concur.

Judgment and order affirmed, with costs.