that said owners refuse to remunerate or pay any part of such bill of damages.

That proof of the amount of loss, proof of plaintiffs' interest, and adjustment has been exhibited to the assurers more than sixty days, but that such assurers, without objection to such proof, or the sufficiency thereof, refuse to pay the same.

Whereupon the plaintiffs demand judgment against the defendants for the damages they have sustained (less onethird, as a commutation for the average difference between new repairs and old), amounting in all, with such deduction, to the sum of $175.48, with interest from the 29th of June, 1857, besides costs.

S. & V. S.,

Plaintiffs' Attorneys.

(No. 54.)

For breach of contract of a common carrier to carry goods safely; action brought to recover value of the goods lost and interest, with damages for breach of contract.

SUPREME COURT-CITY AND COUNTY OF NEW-YORK.

Amon L. Scovill, John D. Goodwin and
Henry E. Morrill

agt.

Walter S. Griffith.

The plaintiffs complain of the defendant, and allege: That at the time hereinafter next mentioned, at the city of New-York, the plaintiffs were merchants, traders and dealers in that place, carrying on their said business, by and in the partnership name, firm and style of A. L. Scovill & Co., and were then and there the owners of the

several articles or packages of medicine, goods and merchandise hereinafter mentioned, which they had occasion, in the course of their said business, to consign, send and convey, from the city of New-York to the city of Albany, for one S. H. Greenman, to the care and direction of certain persons trading and doing business together in that place by and in the partnership name and firm of Ainsworth & Northrop, with which said Greenman the said plaintiffs had bargained and agreed for the sale of the said medicine, goods and merchandise, to be delivered by the plaintiffs to him as aforesaid.

That on or about the 24th day of May, 1849, the said defendant was, and carried on the business of, a common carrier of goods and merchandises for hire, and the said plaintiffs then and there delivered to the said defendant, and the said defendant then and there accepted and received from the said plaintiffs, as such common carrier, in and on board of a certain vessel of the defendant, then lying at the city of New-York, called the McCoun, three gross of Doctor Rogers' Syrup of Liverwort Tar and Canchalagua, of the value of $288, and one and one-half gross of Vegetable Aperient Pills, of the value of $36, to be safely and securely taken and conveyed by the said defendant, for the said plaintiffs, from the city of New-York to Albany aforesaid, by water conveyance, in and on board of the said vessel of the said defendant, by the next trip that the said barge should make from the said city of New-York, and there at Albany aforesaid to be safely and securely delivered by the defendant, his servants or agents, for the said plaintiffs, to the said Ainsworth & Northrop, at No. 15 State-street, Albany, for the said S. H Greenman, for a certain reward to be paid for the same, on the delivery thereof as aforesaid; on which occasion, and on the delivery to the said defendant by the said plaintiffs, and

for them, of the goods and merchandise aforesaid, to be transported, conveyed and delivered as aforesaid, the said defendant made or caused to be made and delivered to the said plaintiffs a certain receipt or bill of lading of the said goods and merchandise, which is in the words following, to wit:

New-York, May 24th, 1849.

Received from A. L. Scovill & Co., in good order, on board the Griffith's line, bound for Albany, McCoun, marked S. H. Greenman, care Ainsworth & Northrop, 15 State-street, Albany, 9 boxes merchandise.

WILSON.

That the nine boxes of merchandise, mentioned in the said paper writing or bill of lading, were marked and directed as above stated by the plaintiff, and the said nine boxes contained the medicine, goods and merchandise above described, and that the name of Wilson, subscribed to the same, was the name of and the same was subscribed by or for the captain or master of the said vessel, McCoun, also mentioned in said bill of lading, in and on board of which the said goods and merchandise were laden, and who was the duly authorized agent of the said defendant for such purpose.

That although the said vessel, on board of which the said goods and merchandise were laden as aforesaid, left the city of New-York at the time abovementioned, yet the said defendant did not safely or securely transport, carry or convey from the city of New-York to Albany, on board the said vessel, or otherwise, nor did he safely or securely deliver or cause to be delivered to the said Ainsworth & Northrop at No. 15 State-street, Albany, or any other place, nor to the said S. H. Greenman, nor to any other person or persons for them or either of them,

for the said plaintiffs, the said packages of medicine, goods and merchandise abovementioned, or any part thereof; whereby the said property of the plaintiffs abovementioned became wholly lost to them, and whereby they lost the sale of the same to the said S. H. Greenman, and all benefit and advantage which they might and would have derived from the sale and safe and secure delivery of the said goods and merchandise as aforesaid, by reason of which they have sustained damage to the amount of $100.

Wherefore the plaintiffs demand judgment against the said defendant, for the sum of $424, being for the amount and value of the said goods, medicines and merchandise aforesaid, and their damages sustained as aforesaid, with the interest on the said sum of $324, the value of the said goods and merchandise, from the 28th day of May, 1849, and costs.

HAY S. MAKAY,

Plaintiffs' Attorney.

(No. 55.)

For breach of contract of a common carrier to transport · goods by a particular route, by reason whereof, the goods being damaged, the plaintiff lost the benefit of an insurance upon them.

SUPREME COURT-ALBANY COUNTY.

Henry White
agi.

Aaron Van Kirk and Samuel Ashton.

The plaintiff complains of the defendant, and alleges, on his information and belief:

That the said defendant, Samuel Ashton, alone, or in connection with said defendant, Aaron Van Kirk,1 on or about the 1st day of May, 1854, was the owner of the schooner Benjamin Browning; that the said defendant, Aaron Van Kirk, was the master of said schooner, and run the same in company with said defendant, Samuel Ashton, each sharing in the profits and losses; that on or about the said first day of May, 1854, at Albany, the said defendants, as common carriers, received in good order and condition from the said plaintiff one thousand bushels of barley malt, of the value of $1,450, to be carried and transported by said defendants safely and securely on said schooner, by the inland or canal route, from Albany, in the State of New-York, to Baltimore, in the State of Maryland, and there to be delivered in like good order to the said plaintiff, the freight thereupon to be paid by said plaintiff, at six cents per bushel. And the said plaintiff saith that he caused the said malt to be insured for said voyage; and further alleges, on information and belief, that the said defendants failed to carry and transport said malt by said inland or canal route as they agreed, and that they failed to safely and securely carry and transport and deliver the same in good order as they agreed, but that the said defendants transported the same by the outward or ocean route, and so carelessly loaded the said schooner, and conducted themselves in such carriage and transportation, that they wet, injured and damaged said barley malt to the amount of $490.85, by

1 An allegation in this form, in the alternative, cannot be considered good pleading. (See Pleadings, 358; Corbin v. George, 2 Abbott, 465.) The pleader should inform himself so far as to allege on information and belief, or at least on his belief alone (Pleadings, 357, 358), the fact in a direct and affirmative form. Should there be a variance between the proof and pleading on the trial, the court may allow an amendment.