Opinion
April 26, 1907.
Ethelbert I. Low [ Benjamin R.C. Low and Arthur S. Hamlin with him on the brief], for the appellant.
Alfred B. Osgoodby, for the respondent.
This case involves the right of the defendant to a lien for storage of baggage after its arrival at its destination. The plaintiff and his baggage, a small telescope valise, reached New York on one of the defendant's trains at one-twenty-four A.M., Sunday. At nine A.M. the next day he sent a boy for the baggage, who went to the wrong place, and at two P.M. he himself called for the baggage, but was not allowed to take it without paying twenty-five cents storage charges. His excuse for not getting the baggage on his arrival was that he had a toothache and wanted to have the tooth pulled. The action is for conversion. Plaintiff had judgment and the defendant appeals.
The respondent claims that a common carrier cannot have a lien for storage of baggage under any circumstances, because it is not engaged exclusively in the business of storing goods. This contention is based on chapter 526 of the Laws of 1885; but the statute in force now, section 73 of chapter 418 of the Laws of 1897, entitled the defendant to a lien provided it had ceased to be a common carrier and had become a warehouseman. This depends entirely upon whether the plaintiff had had a reasonable time to remove the baggage ( Burnell v. N.Y.C.R.R. Co., 45 N.Y. 184), and the facts being undisputed this was a question of law. ( Hedges v. H.R.R.R. Co., 49 N.Y. 223.) I think the rule is settled in this State that where the baggage is carried on the train with the passenger so that he is present upon its arrival, he must take it away as soon as practicable, and if for his own convenience he chooses to leave it with the carrier, the latter becomes a warehouseman. (See cases cited supra; Roth v. Buffalo State Line R.R. Co., 34 N.Y. 548; Fenner v. Buffalo State Line R.R. Co., 44 id. 505; Mortland v. Philadelphia R.R.R. Co., 81 Hun, 473; Graves v. Fitchburg R.R. Co., 29 App. Div. 591.) The reason for the rule as stated by the cases cited is obvious. The strict liability of the carrier should not be continued longer than the contract of carriage contemplates. It contracts to carry the goods and deliver them to the consignee, and during the time necessary for the performance of that contract is an insurer, but that liability should not continue after the consignee has had an opportunity to receive the goods, if the latter for purposes of his own chooses to treat the carrier as a warehouseman. The plaintiff could have taken his baggage immediately upon its arrival; he saw fit to store it with the defendant, and the situation is the same as though he had obtained his baggage and stored it with some other warehouseman.
The judgment should be reversed.
HIRSCHBERG, P.J., GAYNOR, and RICH, JJ., concurred; HOOKER, J., dissented.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.