Harley v. The Eleventh Ward Bank. It appeared that the account of December 27, 1872, was not only stated, but settled; and it was also ratified and reaffirmed by each subsequent accounting through a period of over two years. Plaintiff resisted the claim at the outset on the ground of defendant's want of diligence in its collection. The defendant recognized this in the correspondence with its agent, refused to accept Martin's offer to pay fifty per cent. of the indebtedness, and rendered account after account in which it was entirely ignored. I think the defendant should be held to its own interpretation of the transaction, and that the judgment should be affirmed. ROBINSON, J.-Payments voluntarily made by one against whom a claim is made as of right, and by whom it is assented to, cannot be reclaimed. The credit given by the defendant to plaintiff of the $800 draft in question they might have cancelled upon being advised of their mistake, had the failure to collect the draft arisen through no default of theirs. But after having been fully apprised of its non-payment, of plaintiff's refusal to any discharge of the credit because of want of diligence on their part, or of their sub-agents, in its collection, and of Martin's failure while presentation was delayed, and having thereafter asserted against their sub-agent, in their own right, a claim for damages for their neglect, predicated upon their positive assertion that they had, in consequence of that neglect, paid their own employer (the plaintiff), and as his conceded damages for their neglect, the amount of the draft and further, after having continued the credit uncancelled for two years and a half, and having during that time made no attempt to modify or correct it, but in their numerous accounts rendered making no intimation of any dissent from its correctness, I fail to discover how such subsequent accounts, prepared and rendered under full knowledge of the facts, could be regarded as other than "accounts stated" without legal impeachment for the alleged mistake occurring in November, 1872, in respect to the Martin draft. : Payments are transactions wherein both debtor and cred Harley v. The Eleventh Ward Bank. itor agree in the application of the money paid or consideration given as being to the very intent and purpose suggested and agreed upon between them. No mistake occurred in this case in the continued assertion of the plaintiff's claim, that the credit given him in his bank account for the draft should be maintained, nor in the acquiescence by the defendants in that claim in the subsequent transactions between the parties, and the repeated acquiescence in, and acknowledgment of, its justice and propriety until May, 1875. Other considerations of an equitable character also estop the defendants. They were offered by Martin fifty per cent. of the debt, which they refused, and they then (as they never had done before) neglected to advise the plaintiff they should look to him alone for the amount of the draft. The credit so asserted in November, 1872, and acquiesced in by the defendants, and continued unaltered without further question until in May, 1875, must in every aspect be treated as then made, and be held as a legal payment into the bank, through deposits made for all purposes of a general bank account, and as recognized in all the subsequent accounts between the parties, as evidenced by plaintiff's pass books and the balancing or settlements of balances therein on various occasions, as shown by the testimony. The subsequent attempt of the defendants in May, 1875, to return the draft and disavow and annul the credit made and acquiesced in from November, 1872, was of no avail. I concur with Judge Larremore in an affirmance of the judgment. CHARLES P. DALY, Ch. J., dissented. Judgment affirmed.* Affirmed by the Court of Appeals, March 18th. 1879. Flaherty v. Greenman. MARY M. FLAHERTY, Respondent, against GEORGE GREENMAN et al. Appellants. (Decided February 4th, 1878.) 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. Held, further, that this question has been settled by the Court of Appeals in Fairfax v. The N. Y. Central & Hudson River R. R. 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. Held, further, that although there was no allegation or admission in the pleadings that the defendants were carriers of freight (the allegation of the complaint being only that they were carriers of passengers and baggage), that the court on 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. MOTION made at general term that it make an order, under L. 1874, c. 322, stating that there was involved in the case some question of law which ought to be reviewed by the Court of Appeals. The action was for the loss of the plaintiff's trunk which, it was alleged, had been lost by the negligence of the defendants while in their charge as common carriers of passengers. and baggage between New York City and Sag Harbor, L. I. The plaintiff had a verdict and the judgment thereon was affirmed at general term. The facts which the appellants claimed showed error on the trial are stated in the opinion. Butler, Stillman & Hubbard, for the motion. Roe & Marklin, opposed. Vol VII.-31 Flaherty v. Greenman. CHARLES P. DALY, Chief Justice.-To authorize us to send a case to the Court of Appeals, we must, by statute, state in the order that there was involved a question of law which ought to be reviewed by the Court of Appeals (L. 1874, c. 322, p. 378), and we cannot so certify in this case, as the law governing it has been settled by that court. The point raised is, that the defendants were answerable for the loss of the trunk only as baggage in the event of a contract between them and the plaintiff to carry her as a passenger; and as there was conflict upon the question whether she had or had not purchased a ticket, that they were entitled to have the jury instructed that if the trunk was carried without any ticket being purchased by the plaintiff she could not recover. We held that if the trunk was delivered on board the steamboat, marked, as the plaintiff testified, “Mary M. Flaherty, Sag Harbor, L. I.," they were answerable for the failure to deliver it, in the absence of evidence repelling the presumption of a loss through their negligence, and it is this ruling which the defendants desire to review in the Court of Appeals. That the law has been settled upon this point by the Court of Appeals, will appear after a statement of the facts which we must assume were found by the jury from the ver dict they rendered. The testimony given on the part of the defendants created a very strong presumption that the trunk was never delivered on board the defendant's steamboat, but was probably, by mistake, put by the expressman upon some other steamer. But the jury found for the plaintiff, and we must, consequently, assume that they found the facts to be as testified to by the expressman, and his testimony shows a delivery of the trunk on board the defendant's boat, under circumstances which bound them for the due delivery of it in Sag Harbor, unless their inability to do so arose from facts showing its loss without any negligence on their part. His statement is, that when he brought the trunk to the "Coit," about half-an-hour before the departure of the boat, Flaherty v. Greenman. he found several persons there, but no one acting in the capacity of receiving baggage; that a man was coming up the gang-plank whom two or three weeks afterwards, the witness saw on the deck in the act of receiving baggage from a coach containing ladies, and who was then giving directions to the coachman where to put the baggage on board the "Coit;" and ordering other baggage to be carried forward by a man who had a hand truck. The expressman testified that he asked the man thus subsequently identified as employed in giving directions respecting baggage, where "the baggage was to go that went to Sag Harbor," and that the man answered, "Over there," pointing to a particular spot on the boat where there were several packages and trunks; and that a person was standing by the baggage whom the witness identified in court as the witness Geary, the baggage master of the boat, and whose duty it was, as he testified himself, to receive all the baggage that came on board. The expressman swore that he then took the trunk upon his shoulder, carried it on board the boat, and placed it by the other baggage without asking for a receipt, as he never took receipts. This was ample evidence of the delivery of the trunk on board the boat, and into the custody of the defendants' agents, for whether the man who directed him where to place it had or had not, at that time, any duty in respect to baggage, the baggage master of the boat, whose duty it was to receive all baggage, was standing by the spot where the expressman placed the trunk; and the expressman says he also asked him where the Sag Harbor baggage went, and that he answered, "There." There can be no doubt, assuming, as we must do, that these were the facts, that there was a delivery of the trunk into the custody of the defendants' agents, and although the plaintiff did not go in the steamboat that day, as she did not reach the pier until after the boat had left, and although a ticket may not have been purchased for her, although there was direct evidence that one was purchased on board of the boat that morning, still the defendants, from their own testimony, assumed, in respect to a trunk so left, the responsibility |