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Opinion of the Court, per GROVER, J.

debtors upon the plaintiff's execution; and that for the breach of this duty the plaintiff had a right to recover. There are two answers to this. 1st. He received the attachments and executions against the firm within sixty days after the receipt of the plaintiff's execution. These constituting liens upon the entire property, and it being the duty of the sheriff to sell the property absolutely thereon, and the liens exhausting the whole, there was nothing remaining to sell upon the execution of the plaintiff. Had it become the absolute duty to sell upon the plaintiff's execution before the receipt of the process against the firm, the case might have been different; as, had the property been sold upon the plaintiff's execution prior to that time, the interest of the execution debtors would have passed to the purchaser, subject, nevertheless, to the rights of the firm creditors to its application to the payment of the debts of the partnership. 2d. The entire property being insufficient to satisfy the prior liens, the plaintiff sustained no injury by a failure to sell the interest of the debtors upon his execution, unless such a sale would have produced something to apply thereon. The referee found as a fact, in substance, that it would not have produced anything. It is insisted by the counsel for the appellant that this finding was wholly unsupported by evidence. The fact that the firm sold $1,000 of the goods after the levy of the plaintiff's execution, before the process against the firm came to the hands of the sheriff, the proceeds of which were retained by them, has no bearing, except that this amount must be included in the assets of the firm in determining whether there would have been any interest remaining to the purchaser of the goods at a sale upon the plaintiff's execution, after payment of the partnership debts from the assets of the firm, for the reason that the prior liens would much more than absorb this, together with the property remaining unsold. The mode of determining whether any and what interest would have been acquired by a purchaser of the property, had it been sold under the plaintiff's execution, is to take an account in equity of the other assets and

Opinion of the Court, per GROVER, J.

of the debts of the firm, and, in case the firm debts are paid from the other assets, the purchaser would be entitled to the execution debtor's proportion of the property purchased, or in what should remain after payment of such debts. The counsel for the appellant insists that the unconflicting evidence proved that the other assets of the firm would have paid the firm debts, leaving sufficient of the stock of goods, if sold under the execution, to pay the whole or some part of the execution. The answer to this is that it was not so proved. The assets consisted largely of debts, either notes or accounts (the evidence does not show which) due the firm; that two years had elapsed, during which efforts had been made for the collection of the debts, during which about three-fifths only had been realized. Under such circumstances there is no presumption that the residue of the debts were of any particular value; much less, that they were all good and collectible. Such presumption would be contrary to nearly universal experience in such cases. While it is held in some cases that the presumption is that a debtor is solvent, yet it ceases when the debt is long past due, and unavailing efforts for its collection have been made. The defendant having shown that the prior liens were sufficient to exhaust all the property subject to levy, including the thousand dollars sold by the partnership, the onus was upon the plaintiff to show that it sustained injury by such sale. This they failed in doing. The counsel insists that he was entitled to recover for the reason that it appeared that all the partners were liable for the payment of the debt upon which the judgment was recovered. The answer to this is that he had taken judgment against two only, not as jointly indebted with the third partner, but as his only debtors. It is entirely clear that, under this judgment, he could not interfere with the property of the third, though liable for the payment of the debt. In any view, the plaintiff failed to show any right of recovery. It being the duty of the sheriff to sell the property upon the executions against all the partners, which were more than sufficient to absorb all the property, including that sold

SICKELSVOL. IV. 69

Statement of case.

by the partners, and there being no proof of a surplus applicable to the payment of the plaintiff's debt, in case none had been so sold, the plaintiff sustained no injury by the acts of the defendant under its execution. The judgment must be affirmed, with costs.

All concur, except CHURCH, Ch. J., not voting.
Judgment affirmed.

FERRAL C. DININNY, Appellant, v. THE NEW YORK AND NEW

HAVEN RAILROAD COMPANY, Respondent.

The responsibility of a railroad company as a common carrier, for baggage,

continues until the owner has a reasonable time and opportunity to remove it. In order to relieve itself from this liability it is its duty to have a baggage-master at hand deliver baggage for a reasonable time

after the arrival of a train, and at reasonable hours thereafter. The wife of plaintiff was a passenger upon defendant's road from New

York to Mt. Vernon ; immediately upon the arrival of the train the baggage-master placed her trunk in the depot and went away. She waited fifteen minutes to get the trunk, but could find no one to deliver it. About three hours after, plaintiff's son went to the depot for it, but the baggage-master was still absent. The son went in pursuit of him, and returning with him, delivered his check and the trunk was drawn out to the door, but meanwhile, the conveyance employed to remove the trunk had gone, and no other could be obtained, and it was thereupon left in charge of the baggage-master for the night. During the night it was

broken open and rifled of its contents. In an action to recover for the loss,—Held (ALLEN and FOLGER, JJ., dis

senting), that defendant's liability as common carrier had not terminated and that it was liable.

(Argued April 23, 1872; decided May 28, 1872.)

APPEAL from order of the General Term of the Supreme Court in the fourth judicial department, reversing a judgment in favor of plaintiff entered upon the report of a referee and directing a new trial.

The action was brought against defendant as a common carrier to recover for the loss of the contents of a trunk.

Statement of case.

On the 4th day of July, 1868, the wife of plaintiff was a passenger upon defendant's road from the city of New York to Mount Vernon. She had with her a trunk containing wearing apparel for herself and plaintiff, jewelry and other articles. The train arrived at Mount Vernon at about 5.30 P. M. The baggage-master immediately put the trunk into the depot and went to tea; his house was about one-fourth of a mile distant. Plaintiff's wife waited about fifteen minutes and searched for some one to deliver her baggage; the ticket office was closed, and she could find no one. She thereupon went away. After tea the plaintiff sent his son to get the trunk; he procured a man with a horse and wagon to carry it, and went to the depot about eight P. M. The depot was locked; the son thereupon went to the residence of the bag. gage-master and induced him to go to the depot to deliver the trunk. Upon their arrival he took the check and removed the duplicate from the trunk, and drew the trunk out to the depot door, but on looking for the wagon it was found that the man in charge had left with it and could not be found. No other conveyance could be obtained, and the baggagemaster consented to keep the trunk until morning. It was placed back and locked up. The depot was entered by burglars during the night, the trunk broken open and rifled of its contents.

The referee found that plaintiff was entitled to judgment for the value of the contents of the trunk, and judgment was entered accordingly.

George B. Bradley for the appellant. The failure to deliver trunk and contents established defendant's liability, and the burden was upon them to relieve themselves from such liability. (Burnell v. N. Y. C. R. R. Co., 45 N. Y., 184; Michaels v. N. Y. C. R. R., 30 id., 564; Read v. Spaulding, 30 id., 630; Southern Ecpress Co. v. Newby, 36 Ga., 635; American Express Co. v. Sands, 55 Penn. St., 140; Angle v. Mississippi, etc., R. R. Co., 18 Iowa, 555; Garvey v. Camden & A. R. R. Co., 1 Hilton, 280.) Find

Statement of case.

A

ings will be presumed if essential to sustain the conclusions of the referee. (Valentine v. Conner, 40 N. Y., 248–254 ; Grant v. Morse, 22 id., 323; Carman v. Pultz, 21 id., 547; Grant v. Morse, supra ; Phelps v. McDonald, 26 N. Y., 84; Brainard v. Dunning, 30 id., 211.) The responsibility of the defendant as common carriet, as to baggage of its passengers, does not terminate until delivery to the owner unless the latter fail within a reasonable time to call for and receive the same. (Powell v. Myers, 26 Wend., 591; Price v. Powell, 3 Comst., 322; Angel on Carriers, $ 114.) And what is a reasonable time depends upon circumstances and is à question of fact. (Burnell v. N. Y. C. R. R. Co., 45 N. Y., 186; Cary v. Cleveland & T. R. R. Co., 29 Barb., 35, 44, 50; Curtis v. A. G. & M. M. R. R. Co., 49 id., 148, 154; Goodwin v. B. & 0. R. R. Co., 58 id., 195; Gilhooly v. N. Y. & S., etc., Co., 1 Daly, 197; Haskin v. Hamilton Ins. Co., 5 Gray, 132; Cole v. Goodwin, 19 Wend., 255.) The defendant cannot make its own negligence operate to the prejudice of the plaintiff. (Powell v. Myers, 26 Wend., 597; Cole v. Goodwin, 19 id., 251, 255.) The baggage-master as agent of defendant had power to continue the relationship as common carrier, and his arrangement estops defendant. (Curtis v. A. G. & M. M. R. R. Co., 49 Barb., 148; Hickox v. Naugatuck, 31 Conn., 281.) But if defendant was not responsible as carrier it was liable as bailee for negligence. (Burwell v. N. Y.C.R.R. Co., 45 N. Y., 184, 187; Orange Co. Bank v. Brown, 9 Wend., 85; Powell v. Myers, 26 id., 594.) The evidence discloses gross negligence. (Chicago, R. I. & P. R. R. Co. v. Fairclough, 52 Ill. [Freeman), 106; Warner v. Burlington, etc., R. R. Co., 22 Iowa, 166; Morris v. Third Av. R. R. Co., 23 How., 345, and cases cited; Van Horn v. Kermit, 4 E. D. Smith, 453.) The findings of the referee are conclusive. (Cheny v. Beals, 47 Barb., 523, 525.) The judgment was not reversed on questions of fact. (Code, 8 268; Baldwin v. Van Deusen, 37 N. Y., 487.)

D. Rumsey for the respondent. Defendant's contract was

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