James C. Aikin at al., Appellants, against Robert E. Westcott, as President of Westcott's Express Company, Respondent

James C. Aikin at al., Appellants, against Robert E. Westcott, as President of Westcott’s Express Company, Respondent. (Decided May 18th, 1888.) In an action to recover the value of a lost trunk, it appeared that defendant, a company doing a baggage-transfer business, employed persons whose duty it was to handle all baggage arriving at the Grand Central Depot in New York City, over a certain railroad, and retain the same until checks were presented therefor; that as such, defendant’s employes received the trunk in question, for which plaintiffs’ travelling agent gave a check to defendant’s agent, who solicited, on the train, orders for transfer of baggage. Held, on these facts, that the burden rested on defendant to explain why the trunk was not delivered. Appeal from a judgment of this court entered upon the dismissal of a complaint. The action was brought against the Westcott Express Company to recover the value of a trunk and its contents. The trunk with another had been checked through to New York City from Detroit by the Michigan Southern and New York Central and Hudson River Railroad Company, and checks for the trunks were delivered on the latter road to the defendant’s agent by the plaintiffs’ salesman, Hudson, who had received the checks in Detroit. The question on this appeal is whether there was evidence of an actual delivery by the railroad company to the express company (the defendant) of the trunks. Abbott Brothers, for appellants. E. L. Hamilton, for respondent. [MAJORITY — J. F. Daly, J.] J. F. Daly, J. There 'was evidence that the defendant’s employes received the two trunks. It is proved that they received one trunk and delivered it to plaintiffs. There is no doubt that they received the other trunk at the same time. The witness Delaney, defendant’s employe, identified two trunks which were evidently the two in question. There was certainly sufficient evidence to require a submission of the question to the jury. The delivery of these trunks to Delaney was a delivery to the defendant. He with other laborers or porters were employed by the defendant to. handle the baggage that came out of the cars on the incoming trains at the depot of the railroad in New York City. They helped to unload the baggage. It was their duty to, and they did, receive every piece of baggage as it came in and put a tab on it and place it in its proper place and, when the checks came in, to deliver it. This was all done on the premises of the railroad company, that is to say, in the depot of the company, but the persons into whose charge the property was given were not the servants of the railroad company, but of the defendant. The baggage was delivered into the custody of defendant’s employes placed there by defendant to receive it, and therefore was placed in the custody of the defendant. The defendant retained the custody of it until they received checks for it. The trunks in question arrived at the depot in New York City on the evening of December 29th, 1884, and were then and there delivered by the railroad company in the manner above stated to the above-mentioned employes of the defendant. The checks were delivered the next day, December 30th, 1884, on the train to New York when near Poughkeepsie, by Hudson to the agent of defendant, whose duty it was to solicit on the train orders for the delivery of baggage from passengers and to receive from them checks for the same. We have therefore evidence showing that on December 29th, 1884, the defendant received into its custody the plaintiffs’ property, and the next day received the checks for it and undertook to deliver it to plaintiffs. Uncontradicted, this evidence would have supported a verdict for the plaintiffs. It was for the defendant to explain why both trunks were not delivered. The judgment should be reversed and a new trial ordered,' with costs to abide event. L arremore, Ch. J., and Allen, J., concurred. Judgment reversed and new trial ordered, with costs to abide event.