SANDFORD v. AMERICAN DISTRICT TELEGRAPH COMPANY.
N. Y. City Court, General Term;
February, 1894.
I. Carriers.] . A company which furnishes messengers .to any who may desire them is a common carrier, and is liable as such for any property which is intrusted to its messengers to deliver
3. The same.] Where a messenger of such a company was called by a customer of a bank by means of a call-box furnished by the company to the bank (but not under such circumstances as would indicate that the box was for the exclusive use of the bank), and a messenger answered such summons and undertook to perform the duty required of him by the caller, without first returning to the company’s office in accordance with the company’s instructions,—Held, that such messenger was the agent of the company, and that it was bound by his acts.
3. The same.] In such a case, the fact that the company had a contract with the bank limiting the amount of its liability does not affect the rights of a third person using the bank’s call-box, where his dealings with the company were not had with reference to such contract.
Appeal by defendant from a judgment of the N. Y. City Court, and from an order denying his motion for a new trial.
*148Action by Benjamin G. Sandford against the American District Telegraph Co. to recover for the failure of defendant to deliver for deposit to the credit of the plaintiff, at the Bank of New York, a certain package of money-amounting to $175, which plaintiff had delivered to a messenger of defendant. The plaintiff called for the messenger on one of the company’s instruments located in the Continental National Bank in the City of New York, The instrument had been in use in the bank for more than twenty years, and had been indiscriminately used by the bank and its customers. The messenger failed to deliver the money which was given him to deposit, and after a time returned and stated that he had lost it. By the contract under which the call-box was placed in the bank, the company’s liability was limited to $100 for any loss that might occur through the employment of its messengers.
Plaintiff recovered judgment for the full amount lost,, with interest.
George H. Fearons and Rush Taggert, for appellant.
McIntyre & Settel, for respondent.
Fitzsimons, J.
The defendant is a common carrier,, and as such must carry out every contract assumed by it, except where prevented from so doing by the act of God or the common enemy.
The question in this case is, did the defendant contract to deliver the plaintiff’s money to his bank for deposit? If so, then, in my opinion, the judgment herein should be sustained. The defendant has-distributed throughout the city about 30,000 call-boxes. Some of them are placed in private places, others in public places. The one which plaintiff used was situated in the Continental National Bank, and, as far as the manager of the messenger department of defendant knows, it might be in a public place in said bank.
*149In such cases, when word is sent from the call-box for a messenger to defendant’s office, one is sent, and he performs the duty required from him by the caller without first returning to said office, and such are the instructions to such messenger boy by defendant. Such messenger is then the agent of the defendant, for the services required, and his act is the act of the defendant. His carelessness is its fault, for which it is liable. The fact that defendant had a contract with the Continental Bank does not concern plaintiff, unless his dealings with defendant were had with reference to such contract, which is not the case here.
There is ample evidence showing that the boy who undertook to carry defendant’s money to his bank Was one of defendant’s messengers, and, as above held, its agent, and that he lost the money intrusted to him by his negligence is also apparent, and defendant’s liability for such negligence for the sum of money lost follows.
Finding no error, the judgment must be affirmed, with •costs.
Newburger, J.
I concur in the result.