Rodbell v. Gotham Despatch & Express Co.

Appellate Terms of the Supreme Court of New York

Decided June 30, 1908

Appellate Terms of the Supreme Court of New York · decided 1908-06-30

Appeal and Error—Questions Not Raised in Lower Court—Review. In an action against a carrier for loss of goods In course of transportation, defendant, having admitted plaintiff’s .ownership of the goods by failing to deny such ownership in the trial court, cannot complain on appeal that plaintiff failed to show such ownership. [Ed. Note.—For eases in point, see Cent. Dig. vol. 2, Appeal and Error, ' § 1066.]

Relies on Krulder v. . Ellison

Affirmed · Decided 1908-06-30

MacLEAN, J.

¶1Admitting, by not denying, ownership in the plaintiff of certain coats committed by him to it, a common carrier, to be delivered to another, the defendant admitted the competency of the plaintiff to bring this action, taking the case out of the rule in Krulder v. Ellison, 47 N. Y. 36, 7 Am. Rep. 402; and so, the value of the goods and their loss being conceded on the trial, on the one hand, and the counterclaim, on the other, there remained only rendering a judgment for the plaintiff, and no cause for appeal.

¶2Judgment affirmed, with costs. All concur.