Crommelin v. New York and Harlem Railroad

Hunt, Ch. J. It is to be assumed from the evidence and from the finding of the jury, that the plaintiff had received notice on the 12th of October, 1860, of the arrival of his marble. It is to be further assumed, although the evidence was contradictory on that point, that the plaintiff had been informed by the agent of the defendants, that a charge would be made for the detention of the cars longer than forty-eight hours'. Had an action been brought to recover the damages or the agreed price for this detention, it would, upon these facts, have been sustainable. The legal question here is, had the defendants a lien upon the marble for the delay in taking it, which justified their refusal to deliver it. That the defendants had a lien for the freight of the marble is not denied. The plaintiff conceded it and paid the amount before demanding the marble. The lien of an innkeeper or of a common carrier, is well established. So the principle is well established generally, that every bailee who bestows labor, care or skill upon an article entrusted to his possession, may retain the article until the amount due to him for such care, labor or skill, shall be paid. The watch repairer, the blacksmith and the tailor are the instances usually cited by way of illustration. On the other hand, A being stable-keeper or an agister of cattle, has no. such [92] lien. He must deliver the horses or the cattle to the owner upon demand, and seek his remedy upon his contract. (Allen v. Chapman, Croke Car. 271; Blake v. Nicholson, 3 M. & S. 168; Jackson v. Cummings, 5 Mees. & W. 341; Pinney v. Wells, 10 Conn. 105; Grinnell v. Cook, 3 Hill, 486; Morgan v. Congdor, 4 Conn. 522.) In the present case the marble was not deposited in any warehouse or place of storage. The character of a warehouseman, or any liability for its protection or storage, after forty-eight hours, was expressly disclaimed by the defendants, in their notice of October 12th. It .was never removed from the cars, but remained upon them in the public highway, until after the plaintiff had demanded its delivery to him. The defendants insist, that by the goods being left upon their cars, and by the delay of the plaintiff to remove them within forty-eight horns after their arrival, injury, inconvenience and expense was suffered by them. This is quite probable. It constitutes, however, a claim in the nature of demurrage, and does not fall within the principle of those transactions, which gives a lien upon the goods. It is a breach of contract simply, for which, as in case of a contract in reference to pilotage or port charges, the party must seek his redress in ' the ordinary manner. (Abbot v. Shipping, 286; Birley v. Gladstone, 3 M. & S. 205.) i The order of the General Term directing a new trial must be affirmed and judgment absolute is ordered for the plaintiff, and a writ of inquiry should issue to the sheriff of Hew York to assess the damages, unless the same shall be agreed upon by the parties. Judgment affirmed.