Opinion
February, 1895.
E.C. Duvall, for respondent.
Henry C. Andrews, for appellant.
This action was brought to recover for the loss of a trunk alleged to have been intrusted to the custody of the defendant by the plaintiff.
To prove delivery of the property to the defendant, plaintiff called one MacMichael, an expressman, who testified to its receipt by him and that he forwarded it to the defendant's warerooms by his servant Collins. Collins testified that he left the trunk at defendant's warehouse, but was unable to say that he had delivered it at any particular door or had not actually left it on the street; further, he did not recollect whether he had called the attention of any of the defendant's employees to the property.
No receipt was taken upon this alleged delivery, and no contract with regard to the storage of the trunk was proven.
This evidence was certainly insufficient to prove a delivery for the purpose of charging defendant upon its failure to return the chattel at plaintiff's demand (Story Bailm. [9th ed.] § 297; Grosvenor v. R.R. Co., 39 N.Y. 34), but it was sought, further, to prove an admission upon the part of defendant's agent Jones that a delivery had in fact been made by introducing the testimony of the plaintiff with regard to statements made to her by Jones in the course of a conversation had between them nine months after the delivery was claimed to have taken place.
This testimony was received under objection to its competency as hearsay and exception.
The statements alleged to have been made were that "a trunk had been brought by MacMichael," "no doubt the trunk was mine, but it had been given to another party," and she further testified, "his description led me to believe that it was my trunk."
Whatever value as proof of an admission by the individual making them may have been attributable to these statements, they were improperly admitted for the purpose of binding the defendant, being in no way connected with the res gestæ, and the objection to the testimony as hearsay was well taken. Green v. R.R. Co., 12 Abb. Pr. (N.S.) 473; Thallhimer v. Brinkerhoff, 4 Wend. 394; Anderson v. R.R. Co., 54 N.Y. 334, 340.
Failing sufficient evidence of a delivery of the chattel, and for the errors noted, a new trial of the cause should result.
Judgment reversed and new trial ordered, costs to abide event.
BOOKSTAVER, J., concurs.
Judgment reversed and new trial ordered, costs to abide event.