Flaherty v. Greenman

Citations

• 7 Daly 481

Syllabus

<p>Where the defendants were common carriers of freight and passengers by steamboat . from New York City to Sag Harbor, L. I., and the plaintiff’s trunk was delivered . on board of their boat, marked with the plaintiff’s name and “ Sag Harbor, L. I.,”—Held, that they were answerable for a failure to deliver it in the absence of evidence repelling the presumption of loss through their negligence, and that the defendants were not entitled to have the jury instructed that if the trunk was carried without any ticket being purchased by the plaintiff she could not recover*</p> <p>Held, further, that this question has been settled by the Court of Appeals in Fairfax v. The N. F. Central & Hudson River R. S. Co. (67 N. Y. 11), and that therefore this court should not make an order, under L. 1874, c. 322, for the purpose of allowing the defendants to have the question reviewed by the Court of Appeals.</p> <p>Held, further, that although there was no allegation or admission in the pleadings that tlie defendants were carriers of freight (the allegation of the complaint being only that they were carriers of passengers and baggage), that the court ou appeal might and would, in order to sustain the judgment, conform the pleadings to the proof by allowing the complaint to be amended by inserting such an allegation.</p>