Orton G. Orr, Appellant, v. Hamburg Amerikanische Packetfahrt Actien Gesellschaft (Hamburg-American Line), Respondent

Orton G. Orr, Appellant, v. Hamburg Amerikanische Packetfahrt Actien Gesellschaft (Hamburg-American Line), Respondent. First Department, December 4, 1914. Conversion — action for loss of goods delivered to common carrier — pleading — sufficiency of denials — separate and distinct defenses. Where, in an action for the conversion of furs, claimed to have been delivered by plaintiff’s assignors, an express company and the owner, to the defendant as a common carrier for transportation, it is alleged that the defendant, its agents, servants and employees stole and unlawfully disposed of and converted the furs to then1 own use, and the defendant denies that the goods were delivered to it or consigned to the plaintiff’s assignor, except under a bill of lading which exempted the carrier from liability for loss or damage occasioned “ by barratry of the master or crew, by enemies, pirates, robbers or thieves, or for any damage to any of said goods, however caused, which was capable of being covered by insurance,” and then alleges that the goods were stolen during the voyage, and also denies that it has any knowledge or information sufficient to form a belief with respect to the nature, quality or quantity of the value of the goods, such denials are proper and should not be stricken out. Another separate defense that the express company paid the other assignors who were the owners of the goods the full value thereof alleged in the complaint properly incorporated the denials contained ip the first defenses, because the settlement was for the contract liability, and would not be a defense to the present cause of action for conversion. Plaintiff’s motion to require the defendant to make its - answer more definite and certain, by stating whether the goods were stolen through the barratry of the master, or of the crew, or by enemies, pirates, robbers or thieves, was properly denied, for under the bill of lading the defendant was relieved from liability for loss from such causes. The two defenses that the loss was due to theft, and that it was capable of insurance, and was insured, and that the insurance had been paid, are separate and independent, and plaintiff’s motion to have them separately stated and numbered should have been granted. Appeal by the plaintiff, Orton G-. Orr, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of August, 1914, denying his motion to strikeout certain parts of the answer as irrelevant, immaterial and redundant, and to require defendant to make more definite and certain the allegations contained in the first affirmative defense, and separately to state and number the defenses set forth in the so-called first affirmative defense of the answer. Arthur W. Clement, for the appellant. Wharton Poor [Edward Sandford with him on the brief], for the respondent. [MAJORITY — Laughlin, J.:] Laughlin, J.: This is an action on causes of action assigned by the United States Express Company and Traugott Schmidt & Sons, to recover for the loss of a case of raw furs alleged to have been delivered by said express company to the defendant as a common carrier for hire, for transportation to Hamburg, Germany. It is alleged in the complaint that “ the defendant, its agents, servants and employees ” stole and unlawfully disposed of and converted the furs to their own use. The defendant admits that it was a common carrier for hire, engaged in the transportation of property between New York and Hamburg, and owned and controlled the steamship on which the furs were shipped, and puts in issue all other allegations of the complaint, and pleads three separate defenses. In the first defense it denies that the goods were delivered to it or consigned to the express company at Hamburg, excepting under a bill of lading therein pleaded, which exempted the carrier from certain common-law liability, and among other things, from liability for loss or damage occasioned “by barratry of the master or crew; by enemies, pirates, robbers or thieves * * * nor for any damage to any goods, however caused, which is capable of being covered by insurance; ” and then alleges that the goods were stolen during the voyage. In this defense it denies the allegations of the complaint to the effect that it received the goods as a common carrier for hire and for a valuable consideration promised and agreed to deliver them at Hamburg; and it puts in issue the allegations of the complaint with respect to the goods having been stolen and converted by defendant and its agents, and to the effect that there is nbw due and owing from it to the plaintiff the value of the goods. The mbtion is to strike out these denials. Manifestly they are all essential to the defense predicated upon the bill of lading. The defendant in the first defense also denies that it has any knowledge or information sufficient to form a belief with respect to the. nature, quality, quantity or value of the goods, and the motion was to strike that out also. Manifestly it was proper for the defendant to interpose this denial. The second defense is that the express company paid the other assignors, who were the owners of the goods, the full value thereof alleged in the complaint on the 13th day of August, 1912, and that the same was received and accepted by them in full satisfaction and discharge of all liability, and that they released and discharged the express company. This defense incbrporates by reference the denials contained in the first defense, with the exception of the denial of knowledge or information with respect to the nature, quality, quantity or value of the goods. The plaintiff does not allege when the causes of action were assigned to him; and although the date of the adjustment between the express company and the owners is shown, it does not appear whether this was before or after the assignment to the plaintiff, or whether if after the assignment to the plaintiff, the settlement was made without knowledge on the part of the express company that the cause of action had been assigned by the owners. Manifestly the cause of action which was thus settled and compromised by the express company was for its contract liability, and that would not in any event be a defense to the cause of action alleged against defendant for conversion. It was, therefore, proper to incorporate in this defense the denials with respect to the conversion and the receipt of the goods as a common carrier without limitation of liability. The order also denies plaintiff’s motion to require the defendant to make its answer more definite and certain by stating whether the goods were stolen through the barratry of the master, or of the crew, or by enemies, or by pirates, or by robbers, or by thieves. That is quite immaterial, for the theory of the defense is that under the bill of lading the defendant was relieved from liability for loss from any of those causes (Spinetti v. Atlas Steamship Co., 80 N. Y. 71); and no question with respect to the sufficiency of the defense is presented for decision, and, therefore, we are not called upon to analyze it and say whether one part would be good or another bad. The order also denies the motion to have the two defenses that the loss was due to theft, and that it was capable of insurance and was insured, and that the insurance has been paid, separately stated and numbered. Those are separate and independent defenses, and to that extent the motion should have been granted. It follows that the order should be modified by requiring the defendant to separately state and number the two defenses pleaded in the second defense, and as so modified affirmed, without costs. Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred. Order modified as stated in opinion, and as modified affirmed, without costs.