Opinion
July, 1908.
Goldfogle, Cohn Lind (Alfred D. Lind, of counsel), for appellant.
Moses R. Ryttenberg, for respondents.
By this, their action for the conversion of a case of merchandise, delivered for transportation to a truckman who stabled his truck and the case loaded thereon with the defendant over night, the plaintiffs may be said to have affirmed the act of the truckman. It is quite immaterial herein that the defendant had informed the truckman on prior, or even on this particular, occasion, or had printed signs in his stable, that he would not be responsible for merchandise left on trucks, as the conversion established by the evidence, even by the testimony of the defendant himself, was the redelivery of the case of merchandise to a stranger, whatever the prior custom employed therein by the defendant, or by the drivers or helpers of the truckman. It was held in Esmay v. Fanning, 9 Barb. 176, no defense in an action of trover against the bailee of a chattel to show a delivery of the chattel to a person not authorized to receive it. The judgment in favor of the plaintiffs should be affirmed.
GILDERSLEEVE and SEABURY, JJ., concur.
Judgment affirmed, with costs.