Opinion of the Court, per BROWN, J.

from the 20th of May thereafter, and until his successor should be appointed or he was removed for cause. The exception to the proceedings at the circuit was one taken to the rejection of the defendants' evidence, and it presents the principal question upon which the plaintiff's right to maintain the action depends. By the eleventh section of the act of April 4th, 1851, the inspectors at an election for municipal officers in the city of Albany shall certify and declare the result of the canvass of the votes, and file such certificate and statement in the office of the clerk of the common council within twenty-four hours after the completion of the canvass, and the common council at its meeting thereafter shall canvass the returns and declare the result. There was an election for mayor and other officers in the city on the 8th day of April, 1856, and for the purpose of showing who was duly elected mayor, the plaintiff produced and proved the certificate of the members of the common council, dated April 15th, 1856, declaring that Eli Perry having received the greatest number of votes was duly elected. This certificate was in due form, and was produced from the files of the clerk of the common council. It was then proved that Eli Perry qualified and entered upon the duties of his office as mayor. Policemen are removable from office for cause shown by the mayor, and in his absence the chief of police, and the recorder and one alderman, who are to examine the charges, hear evidence, &c., upon both sides, and acquit, remove or suspend in their discretion. The defense was that Conlon had been removed from his office for drunkenness and misconduct after a trial had before the mayor, recorder and Alderman Benson, on the 6th of November, 1856, at which Conlon appeared and was heard in his defense. To lay the foundation for this defense, the defendants offered evidence to show that on the 6th of May, some time after Eli Perry was declared duly elected, the common council of the city made another canvass of the votes, and filed another certificate, in which it was declared that John V. P. Quackenbush was duly elected mayor, &c. This evidence was upon objection rejected, and the defendants excepted. An offer was

Opinion of the Court, per BROWN, J.

then made to read in evidence the returns of the canvassers and inspectors for the election on the 8th of April, 1856, for the purpose of showing that John V. P. Quackenbush had the greatest number of votes for the office of mayor at the election.

This evidence was also rejected upon objection, and the defendants again excepted. The defendants' counsel next offered in evidence the return of a trial of Conlon upon the charge of drunkenness and misconduct, by John V. P. Quackenbush, acting as mayor, Recorder Paddock and one of the aldermen of the city, Conlon's plea of guilty, and his dismissal from office by such city officers. This evidence was objected to and rejected, and the defendants excepted. The legality of the trial of Conlon, and the judgment of dismissal said to have been rendered against him, depended upon the question who was the mayor of the city at the time, and the effort of the defendants was to show that Quackenbush was the mayor at the time of the alleged trial, and the defendants claimed that, notwithstanding Perry had obtained the canvassers' certificate, Quackenbush really had the most votes, and was entitled to the office. The judge decided that Mayor Perry's title to the office could not be the subject of investigation and inquiry in this action, and on that account rejected the evidence. This was entirely right. Eli Perry had the certificate of the canvassers, the authority appointed by law to examine the inspectors' returns, and determine who had the most votes and the right to the office. he was therefore the mayor de facto, and notwithstanding John V. P. Quackenbush might have received the greatest number of the votes, and be rightfully entitled to the office, yet, wanting the certificate, he was not, for the purposes of the trial and dismissal of Conlon, the mayor of the city, and the' proceeding upon which the defendant relied to show that Conlon was not a policeman at the time the service for which he claimed compensation was rendered, was coram non judice and void. The judgment should be affirmed.

All the judges concurred in affirming the judgment except PORTER, J., who did not sit, having been counsel.

Statement of case.

Reply 31 Barb. 198,

DWIGHT JOHNSON, Appellant, v. THE NEW YORK CENTRAL RAILROAD COMPANY, Respondent.

A carrier, in forwarding goods beyond the terminus of his own route, is bound by the instructions of the owner.

It is his right and his duty, in an unforeseen exigency, when the safety of the goods requires it, and the consent of the owner may fairly be presumed, to deviate from the letter of his instructions and notify him of such deviation; but when the deviation is unnecessary, and for the mere convenience of the carrier, he assumes the risk of consequent injury, and remains responsible as an insurer.

The primary duty of an agent is to observe the instructions of his principal; and when he disregards them, he voluntarily assumes a responsibility by which he must be content to abide.

APPEAL from the Supreme Court. The action was for the value of ninety-one bales of tow, addressed to E. Ludlow, Jr., at New York, and delivered by the plaintiff's firm to the defendant at Little Falls, to be transported to Albany, and to be forwarded thence by the People's Line of steamboats to New York. The tow was received by the defendant on the 29th of November, 1854, and on the arrival of the property at Albany, it was offered to the proprietors of the People's Line, who declined to receive it, on the ground that they were prohibited by act of Congress from transporting freight of that description. The tow was then shipped by the defendant on the "E. Corning," a freight barge in good condition, running in the Albany and New York line, which was accustomed to carry freight of this description. The barge left for New York on the 1st or 2d of December, and was the last boat in the line that went down the river that fall, that being the close of navigation for the season. On the passage to New York, the tow was lost with the barge.

The cause was first tried before Judge PRATT, and the plaintiff recovered; but the judgment was reversed at the General Term, which held that upon the foregoing facts the defendant was not liable for the loss.

On the last trial, before Judge HUBBARD, further evidence was given, tending to support the allegation made in the

Opinion of the Court, per PORTER, J.

complaint, and denied in the answer, that the defendant was directed when the property was received to forward it only by the People's Line of steamboats.

On the first trial the plaintiff rested his case, in this respect, on the note made by the defendant at the foot of the entry in the way-bill book, "via People's Line;" but on the last trial it was proved that when the tow was taken to the defendant, the plaintiff asked Mr. Priest, the freight agent of the company, with whom the contract was made, whether the company could forward the tow in question by the People's Line, who replied that it could, but it would cost more than it would to send it by tow boats. The plaintiff told him that it was so late in the season, that unless the defendant could forward it by the People's Line, he did not then wish to send it, and that he did not care about the extra expense. Priest thereupon received the goods to be forwarded in that mode. This evidence was undisputed. It was also proved that there was daily communication by mail and by telegraph between Albany and Little Falls.

The plaintiff claimed that under these circumstances, the forwarding of the flax by a tow boat, without notice to the owner, was a breach of duty, and that the defendant assumed the risk by disregarding the instructions. The judge held otherwise, and granted a nonsuit, which was sustained at the General Term.

Alexander S. Johnson, for the appellant.

Sidney T. Fairchild, for the respondent.

PORTER, J. The defendant undertook to transport the flax to Albany, and to forward it thence to New York by the People's Line of steamboats. On the refusal of that line to receive it, the defendant's obligation as a carrier ceased; and if it incurred any further liability, it was in the character of agent for the owner of the property. In the absence of instructions as to the mode of transportation from Albany, it owed no duty to the plaintiff, beyond the delivery of the property, in the usual course of business, to safe and respon

Opinion of the Court, per PORTER, J.

sible carriers for transmission to its destination. (Brown v. Dennison, 2 Wend., 593; Van Santvoord v. St. John, 6 Hill, 157.) But when the forwarding agent is instructed as to the wishes of his principal, and elects to disregard them, he is guilty of a plain breach of duty. When he sends goods in a mode prohibited by the owner, he does it at his own risk, and incurs the liability of an insurer. (Ackley v. Kellogg, 8 Cow. 225.)

It appears in the present case, that the contract was made with the freight agent of the defendant, who suggested that it would be better to forward the hemp by tow-boat from Albany; but the plaintiff replied in substance, that it was so late in the season that he would not send it, unless it could go by the People's Line. This proof tends to show that the defendant received the property, with an express understanding that the hemp was not to be forwarded to New York unless by the People's Line. If this was so, the defendant was clearly liable. On the refusal of the steamboat proprietors to receive the property, the company should either have communicated the fact to the plaintiff, and awaited further instructions, or it should have relieved itself from liability by depositing the hemp for safe keeping in a suitable warehouse. (Forsyth v. Walker, 9 Barr, 148; Goold v. Chapin, 20 N. Y., 259; Fisk v. Newton, 1 Denio, 451.)

There is a class of cases in which an agent is justified, by an unexpected emergency, in deviating from his instructions, where the safety of the property requires it. In this instance no such exigency arose. The only inconvenience which would have resulted to the owner, from compliance by the carrier with his known wishes, would have been mere delay in transmitting the hemp to market; and he had notified the company that he would rather submit to this delay, than to the hazard of tow-boat transportation at the close of the season of navigation. The primary duty of the agent is to observe the instructions of his principal, and when he departs from these, he must be content with the voluntary risk he assumes. (1 Pars. on Cont., 69; Forrester v. Boardman, 1 Story, 43; Ackley v. Kellogg, 8 Cow., 223.)