Osias Maller, Respondent, v. The Long Island Railroad Company, Appellant

Osias Maller, Respondent, v. The Long Island Railroad Company, Appellant. Second Department, November 22, 1907. Evidence — failure of carrier to deliver goods — declarations of freight agent. In an action against a carrier to recover damages for failure to deliver merchandise, a declaration that the goods were lost, made by the defendant’s freight agent who received the goods for shipment, and who sent out a tracer on the consignor’s request, is admissible to show hon-delivery by the defendant. Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Municipal Court of the city of Hew Yoi’k, borough of Brooklyn, in favor of the- plaintiff, rendered on the 11th ' day of February, 1907. Dominio B. Griffin, for the appellant. Louis B. Boudin, for the respondent. [MAJORITY — Miller, J.:] Miller, J.: Tins appeal is from a judgment rendered-against the defendant in an action for damages for failure to deliver merchandise delivered to it at Long Island City for shipment to Pittsburg, Penn, The only evidence of non-delivery consists of testimony of the plaintiff respecting a conversation had with the defendant’s freight agent in charge of the office where the merchandise was received by the defendant, and the exception to. the admission' of such evidence presents the only point argued by the appellant. .The shiment was made on the 26th of November, 1906. On the sixth of December the plaintiff received a card from the consignee respecting the non-delivery of the goods, and thereupon informed the defendant’s said agent thereof, who told the plaintiff that he would put in a telegraphic tracer. Thereafter the plaintiff called on said agent from time to time for information respecting the goods, and finally, on' the twenty-seventh of December, the. agent told him, in the language of the plaintiff: “No use losing more time, the goods are lost.” The general rules respecting the inadmissibility of declarations or admissions made by agents, relied upon by the appellant, áre not applicable to the situation disclosed in this casé. The freight agent who received the goods for shipment was the proper person of whom to make inquiries. Indeed, it is not easy to perceive whom else the plaintiff, could go to. He must he deemed, therefore, to have had authority to answer inquiries pertaining to the business in hand, i. e., the tracing and delivery of the goods received by him, and what he said cannot be regarded in any sense as made after the transaction, because the receipt of the goods was merely the initial part of a transaction not yet consummated. Certainly he had authority to arrange with the plaintiff for tracing the goods, and what he said relating to that matter, then depending, should be treated as constituting a part of the res gestee. What occurred to the goods after their receipt by the défendant was peculiarly within the knowledge of the latter, hut it, offered no proof on the subject. The ruling admitting the testimony is supported by many decisions. (Price v. Powell, 3 N. Y. 322; McCotter v. Hooker, 8 id. 497; Hartnett v. Westcott, 18 N. Y. St. Repr. 962; Curtis v. Avon, Geneseo & Mount Morris R. R. Co., 49 Barb. 148; Morse v. Connecticut River R. R. Co., 6 Gray, 450.) The judgment should be affirmed. Woodward, Hooker, Gaynor and Rich, JJ., concurred. Judgment of the Municipal Court affirmed, with costs.