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Statement of case.

APPEAL from judgment of the General Term of the Superior Court of the city of New York affirming a judgment in favor of plaintiffs entered upon a verdict, and affirming order denying motion for new trial.

The action was brought against defendant as a common carrier, to recover the value of a portion of a car-load of paper which was burned at defendant's freight station in the city of New York. The paper was shipped to plaintiffs from Fulton, N. Y.

The car containing the paper arrived at defendant's freight station in New York at 7 A. M., May 23d. The plaintiffs received notice of its arrival at 9.40 A. м. on the 24th of May. The plaintiffs thereupon directed one Raymond, a carman who did their work, to go (after he had delivered a load he was then taking on his truck) to the defendant's station, pay the freight on the paper, and "bring down a load of it as quick as you can." Raymond started at 10.15 A. M., and was one hour and forty minutes in going to the defendant's station. He took 500 reams and drove back to the plaintiffs' store, and there unloaded by about 3 p. M. He did not return for another load, but for the remainder of the day carted to other places or remained idle.

The plaintiffs gave no further or other directions as to the paper, and made no further effort to get it or any part of it away from the defendant's station, either by Raymond or by hiring other trucks. The remainder of the paper remained in the car, and in the night of that day and the morning of the following day was burnt up with the car by a fire of incendiary origin.

The defendant gave evidence tending to show that Raymond might have taken away two loads more before 6 P. M., the hour at which defendant ceased to deliver freight.

The court charged that plaintiffs were bound to take away the paper within a reasonable time after notice, and that this was for the jury to decide.

The jury gave a verdict in favor of the plaintiffs for $984.20, the value of the paper burned, with interest.

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Opinion of the Court, per FOLGER, J.

Frank Loomis for the appellant. After plaintiffs' carman paid the charges and was given access to the car, defendant's liability as carrier ceased. (Thomas v. Boston and Providence Railroad Company, 10 Metcalf, 472; Lewis v. Western Railway Company, 11 id., 509; Norway Plains Company v. Boston and Maine Railroad Company, 1 Gray, 263; Ely v. New Haven Steamboat Company, 53 Barb., 207; Northrop v. Syracuse and B. Railroad Company, 5 Abb. [N. S.), 425; Fenner v. Buffalo and State Line Railroad Company, 44 N. Y., 505; Moses v. B. and M. R. R. Co., 32 N. II., 523.)

Philip Jordan for the respondents.

FOLGER, J. The defendant remained liable as common carrier of the paper until the plaintiffs had a reasonable time to remove it, after notice of its arrival at the depot in New York city. (Fenner v. Buff. and St. Line R. R. Co., 44 N. Y., 505.) What is such reasonable time is, when there is no dispute as to the facts, a question of law for the court. (Roth v. Buff. and St. L. R. R. Co., 34 N. Y., 548.)

We do not perceive that there is here any dispute as to the material facts. It is certain that with three or four trucks, all the paper could easily have been hauled away before the close of defendant's business on the day on which one load was taken with one truck. It is certain too, that with the one truck of their own, two loads could have been received by the plaintiffs from the defendant on that day; so that it was a question of law for the court whether it was unreasonable for the plaintiffs to employ but one truck; or if reasonable to employ but one truck, whether it was reasonable to send it but once for paper that day. The learned judge left the question to the jury. In this we think that he erred; for, though we find no error in the terms of his instructions to the jury, nor in his refusals to charge the requests made by the defendant, yet as the finding of the jury was different from what we hold that the law determines, there was error SICKELS VOL. IV. 29

Opinion of the Court, per FOLGER, J.

in committing it at all to the jury; which was injurious to the defendant.

The plaintiffs seek to hold the defendant to a strict liability as insurer of the goods. Asking that so rigid a rule be applied to the defendant, it is just that the plaintiffs in turn, be held to prompt and diligent action. A consignee cannot, after he has notice of the arrival for him of property, defer taking it away while he attends to his other affairs. He may not thus prolong the time during which the carrier shall remain liable as an insurer. That would be to make the carrier a mere convenience for the consignee, without consideration of any kind to the carrier, and yet resting under a great risk. So much time as the consignee after notice gives to his other business, to the neglect of taking charge of his property and removing it from the custody of the carrier, cannot be allowed to him in estimating what is a reasonable time for him in which, after notice of arrival, to take delivery of his goods. He is not to be compelled to leave all other business to take his goods from the hands of the carrier. He may attend first to whatsoever demand of his business he deems the most urgent or the most profitable; but he cannot do this at the hazard and expense of the carrier. It is the duty of the carrier to give notice of arrival ; it is the duty of the consignee at once and with diligence to act upon this notice and to seek delivery, and to continue until delivery is complete. Either may neglect this his duty; but then the consequence of neglect must be borne by him.

Now the testimony here without conflict, shows that after the receipt by the plaintiffs of notice of the arrival of this paper, they continued for a space, in attention to other business than taking it from the defendant's charge; and that after one load had been taken, they turned again to other duties. They thus let slip time enough in which to have called for and have received another load. It may be true that this load would not have reached their store before the hour at which they usually closed it; and if it was of importance to them not to vary their habit in this, they could as

Statement of case.

they did, refrain from returning to the depot for the second load. It would then have remained as it did, in the custody of the defendant, who could not have divested itself of the duty to care for it, as bailee thereof. But had the plaintiffs the right for their own convenience, to put upon the defendant the greater onus of holding it as insurers? There is no justice in compelling the defendant to be the sufferer thereby. There is no justice in it, that the time thus otherwise used by the plaintiffs should not lessen by so much the reasonable space accorded to them for removal of their effects.

We are not compelled at this time, to hold in this case that the plaintiffs were called upon to employ in the removal of the paper more than the single truck and the two servants with which they ordinarily effected the hauling of matter to and from their store. Circumstances might exist which would require more than this of a consignee.

The respondents suggested that the goods were destroyed through the neglect of the appellant. The case was not tried nor hitherto disposed of upon this theory. It would not be just at this stage of the matter, to determine it on that ground.

For the error at the trial there should be a reversal of the judgment, and a new trial ordered, with costs to abide the event of the action.

All concur, except PECKHAM, J., not voting.
Judgment reversed.

SYLVESTER J. SHERMAN, Appellant, v. EDWARD M. WRIGHT, Respondent.

The specific performance of a contract is a matter not of absolute right but of sound discretion in the court, especially where the interests of infants are concerned. Courts of equity will not interfere to decree specific performance except in cases where it would be strictly equitable, and in granting or refusing such relief will look not only at the nature of the transaction but to the character of the parties, and if one is a guardian or trustee, the interest of the ward or cestui que trust will be considered. The contracts of guardians touching the property of their wards will not be enforced unless they are strictly equitable, and for the interest of the infants.

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Statement of case.

In an action for specific performance against a guardian it is incumbent upon the plaintiff to show that the contract sought to be enforced was such an one as the guardian acting for the best interests of the infant might properly have made, and such as the court would have approved and authorized, had authority to make it been asked.

The fraudulent or mistaken representations of one who without authority assumes to act as guardian for an infant lays no foundation for an equitable estoppel against the infant or against a guardian subsequently appointed so as to bind the infant or charge his property.

An injunction staying proceedings under the statute, by a landlord, for the removal of a tenant, will not be granted unless it appears that the magistrate has no jurisdiction, or that the proceedings are fraudulent or collusive.

(Submitted April 11, 1872; decided April 16, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment at Special Term, dismissing plaintiff's complaint.

The action was brought to restrain proceedings instituted under the statute by defendant, as guardian of Franklin W. Lowerre, an infant, to remove plaintiff from premises of the infant, and to compel defendant to ratify a lease claimed to have been executed by one Pearsall Wright, who assumed to act as guardian for said infant. A preliminary injunction was obtained, which was vacated on motion.

The complaint alleged in substance that in April, 1855, Margaret A. Lowerre, the mother and duly appointed guardian of Franklin W. Lowerre, executed, as guardian, a lease of certain real estate in Flushing, Queens county, belonging to her ward, to Thomas W. Willets, for twelve years, with the understanding that the lease should be renewed at the expiration of that time, until the arrival of age of the ward, and in consequence Willets built a store and dwelling on the premises, at an expense of $2,000, and subsequently subleased to Michael Wheeley, who occupied up to May 1, 1867. That Margaret A. Lowerre died in May, 1865, and subsequently Pearsall Wright assumed to act as guardian of said infant, received the rents, and promised to carry out the understanding as to the renewal. That he did, when the time expired, May 1, 1867,

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