Statement of case. The judgment of the General Term should be reversed, and judgment ordered for the plaintiffs, with costs of both courts. All concur. Judgment, reversed. 94 278 120 125 HENRY M. ISAACSON, Appellant, v. THE NEW YORK CENTRAL A carrier of passengers, by the sale of a passenger ticket, as incident to the contract, without any specific agreement or separate compensation, becomes obligated to carry the baggage of the passenger to a reasonable amount, and to deliver it at the end of the route to the passenger or his duly authorized agent. The courts may take judicial notice of the system of checking baggage by It is within the apparent authority of a baggage-master so to check bag- The usual baggage-check delivered to a passenger is not regarded as em- Statement of case. The baggage-master examined the tickets, assented to the request and gave plaintiff checks for his trunks, which he put in his pocket without examining. Upon the checks were the words "New Orleans and New York," and also certain letters and abbreviations which, as explained by experts, indicate the several roads forming the "Great Jackson route." Defendant delivered the baggage to the agent of the Great Jackson route at Niagara Falls, and while in transit it was destroyed by an accident. Held, that the undertaking of the baggage-master to check by the Mobile route was the undertaking of defendant, and included an agreement to deliver at the end of its road to the next succeeding carrier; that by the delivery to another carrier, in the absence of contributory negligence on the part of plaintiff, it remained liable as insurer; also that the omission of plaintiff to examine the checks was not such contributory negligence as prevented a recovery; that at least it was a question for the jury as to whether he had a right to repose upon the representation of the baggage-master without examining the checks, also as to whether an inspection of the checks would have apprised a person, not an expert or familiar with the roads making up the routes between New York and New Orleans, that a mistake had been made. Isaacson v. N. Y. C. & H. R. R. R. Co. (25 Hun, 350) reversed. (Argued October 3, 1983; decided January 15, 1884.) APPEAL from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made October 28, 1881, which affirmed a judgment in favor of defendant, entered upon an order dismissing the complaint on trial. (Reported below, 25 Hun, 350.) This action was brought to recover damages for the loss of plaintiff's baggage while en route from New York city to New Orleans. The material facts are stated in the opinion. Horace E. Deming for appellant. Whether the relation between the plaintiff and the defendant be considered one of contract or of voluntary bailment, the defendant must be held liable for the loss consequent upon the diversion of the plaintiff's baggage. (Rawson v. Holland, 59 N. Y. 611; Faulkner v. Hart, 82. id. 413; Goodrich v. Thompson, 44 id. 324; Magee v. C. & A. R. R. Co., 45 id. 514, 522; Norton v. Western R. R. Co., 15 id. 444, 447; P. & A. R. R. v. Derby, 14 How. [U. S.] 468; Perkins v. N. Y. C. R. R. Co., 24 N. Statement of case. Y. 200-201; 5 Ind. 339; 30 Ill. 9; 3 Lans. 106; 23 N. Y. 344; Hooper v. L. & N. W. R. R., 43 L. T. R. [N. S.] 570; The Elvira Harbeck, 2 Blatchf. 336; Hickok v. R. R., 37 Conn. 281; Pickford v. R. R. Co., 12 M. & W. 766, 771–2.) The apparent anthority of the defendant's agent is clearly established by the evidence. (Jordan v. Fall River R. R., 6 Cush. 69; Hickok v. R. R., 31 Conn. 281.) A clear prima facie case of such authority was made out, which the defendant was bound to meet. The authority of the agent to bind the carrier is always a question of fact. (Thomson v. Wells, 18 Barb. 500.) Railroad tickets and baggage checks are mere tokens or vouchers. (Quimby v. Vanderbilt, 17 N. Y. 306; Nelson v. R. R., 7 Hun, 140, 142; Van Buskirk v. Roberts, 31 N. Y. 661, 666, 669, 672–3; 54 id. 515; 4 Bosw. 225; 31 Conn. 281.) The plaintiff was under no obligation to examine the checks to ascertain whether they contained any thing inconsistent with his agreement with the baggage-master. (Rawson v. R. R.. 48 N. Y. 212; Door v. N. J. S. N. Co., 11 id. 485.) Frank Loomis for respondent. The request of the plaintiff of the baggage-master, for checks the defendant was not bound to give, and his acceptance of the checks given him by the baggage-master, the route by which they would take the baggage being indicated thereon, charged the plaintiff with notice of that route (Hill v. S. B. & My. R. R. Co., 73 N. Y. 351); and precludes him from seeking a recovery, except as against the company in whose custody the baggage was when it was injured. (Fairfax v. N. Y. C. & H. R. R. R. Co., 73 N. Y. 167.) When the plaintiff went to the defendant's baggage-room he had a subsisting contract with the defendant to carry him, his wife and his two children and their ordinary baggage safely from New York to Niagara Falls, and there, at its station, on the arrival of the train, to deliver to the plaintiff the baggage, and plaintiff could demand nothing more. (Laws of 1847, chap. 272, § 6; Laws of 1850, chap. 140, § 37.) An agent is held as to third parties, to have the authority ac Opinion of the Court, per ANDREWS, J. tually conferred upon him, or implied from a characteristic designation, or from such sanctioning of his conduct as implies the nature of his authority. (Thurman v. Wells, 18 Barb. 500, 519.) The baggage-master had neither express, implied or apparent authority to do as the plaintiff requested. (Wait v. A. & S. R. R. Co., 5 Lans. 475; Blumantle v. F. R. R. Co., 127 Mass. 322.) ANDREWS, J. The plaintiff failed to establish a contract by the defendant to carry him and his baggage from New York to New Orleans, via the "Mobile route" from Niagara Falls, as alleged in the complaint. On the contrary the proof conclusively negatived the existence of a through contract by the defendant. The only contract between the plaintiff and defendant for the carriage of the former was made at Niagara Falls, about July 1, 1876, through the purchase there by the plaintiff, of tickets for himself and family over the defendant's road from Niagara Falls to the city of New York, and from the latter place to Niagara Falls on their return. The plaintiff at that time held return tickets from Niagara Falls to New Orleans by the Mobile route, purchased at New Orleans. There is no evidence that the defendant was interested in that route. It appeared that this route in connection with the defendant's road formed a continuous line of railroad between New York and New Orleans, but no community of interest between the defendant and the several corporations operating the lines of road embraced therein was shown. The case, however, was not disposed of on the trial, upon any question of pleading. The facts were shown without objection, on the ground of variance. The nonsuit was granted upon the ground that the facts proved did not disclose a cause of action, and this is the only question presented on this appeal. The essential facts may be briefly stated. The plaintiff on the 17th of August, 1876, having the tickets above stated, entitling him and his family to be carried from New York to New Orleans, via the Mobile route from Niagara Falls, presenSICKELS VOL. XLIX. 36 Opinion of the Court, per ANDREWS, J. ted them with his baggage to the baggage-master at the baggage-room of the defendant in the city of New York, and requested the baggage-master to check the baggage from New York to New Orleans by the route indicated by the tickets. The baggage-master asked to see the tickets, examined them and thereupon gave the plaintiff two checks for his trunks from New York to New Orleans. The plaintiff took the checks, put them in his pocket without examining them, and afterward gave them to his wife for safe-keeping. On the same day the plaintiff and his family commenced their return journey to New Orleans on the route indicated by the tickets, and when near New Orleans the checks were handed to the agent of a transfer company, with directions to deliver the baggage at the plaintiff's residence in that city. It was then ascertained that the checks were those used for baggage sent from New York to New Orleans via what is called the "Great Jackson" route from Niagara Falls. It subsequently transpired that the plaintiff's baggage was in fact sent from Niagara Falls over the route indicated by the checks, and that while in transit, was substantially destroyed by an accident at Tugaloo, Miss. The case contains a printed fac simile of the checks. The words "New Orleans and New York" are distinctly shown on the checks, and at the bottom are numerous letters and abbreviations which, as explained, indicate the several roads constituting the "Great Jackson" route from New York to New Orleans. The delivery of the baggage by the defendant at Niagara Falls to the agents of the Jackson route, was in direct violation of the plaintiff's instructions and of the undertaking of the baggage-master on receiving the baggage. The acts and conduct of the latter on that occasion are consistent only with the theory that he assented to the plaintiff's request to check the baggage by the Mobile route, and through ignorance, negligence, or mistake, checked it by the Jackson route. If the undertaking of the baggage-master, to check the baggage by the Mobile route was in law or in fact the undertaking of the defendant, its liability for the loss of the baggage, in the ab |