Opinion of the Court, per ALLEN, J. under the deed. But for this power of sale, it need not be denied, that the creator of the trust could have granted or devised the lands subject only to the execution of the trust. The trust still continues and the power of sale is valid, and may be executed at any time upon the request of Mrs. Smith; and when executed, the purchaser from the trustee will acquire a perfect title. (Belmont v. O'Brien, 2 Kern., 394.) The power was irrevocable by the grantor. No power of revocation is reserved in the deed. (1 R. S., 735, § 108.) So long as this power of sale is in force, and the grantor cannot revoke it, and by his death the possibility of a revocation is gone, the trustee alone can grant or convey the premises. The grantor of the power has no estate, legal or equitable, which is capable of being transferred. If the wife shall die without having carried into effect the power of sale, a question may arise as to who will be entitled to the estate. But it would seem it would go, in the first instance, to the children of the marriage, as within the objects of the deed. But without considering this question it is sufficient, that at the time of the mortgage there was no interest or estate in the husband, which could be conveyed or transferred by him or by his act. There was no estate or interest, which would have been the subject of a lien under a judgment, or which could have been sold on execution against him. (Briggs v. Davis, 21 N. Y., 574.) There was clearly no attempt by Mrs. Smith, or intent to execute the power of sale or mortgage vested in her; and there is no defect, therefore, in the execution of the power which, in any case, a court of equity could remedy. The opinion of Judge TALCOTT at Special Term is well reasoned, and conclusive upon every point made in behalf of the appellant. The judgment should be affirmed. Statement of case. 46 578 110 180 110 182 WILLIAM REDMOND, Appellant, v. THE LIVERPOOL, NEW YORK A common carrier by water is not discharged from all responsibility As a general rule, if for any reason the consignee does not appear to claim A consignee is entitled to reasonable time to remove the goods; and until (Argued November 24th, 1871; decided December 5th, 1871.) APPEAL from order of the General Term of the Supreme Court of the first judicial district, reversing a judgment entered in favor of plaintiff, and ordering a new trial. The action is brought to recover the value of a box of merchandise, one of twenty-three boxes shipped on board defendant's steamer at Belfast, Ireland, to be transported to the city of New York. The Edinburgh, one of the defendant's steamers, with a large miscellaneous cargo for different consignees, including the twenty-three cases for the plaintiff, arrived at the port of New York on the first of March, 1866. She commenced discharging on the sixth of March, at ten A. M., and continued doing so until six P. M. Resumed on the seventh at seven Statement of case. A. M., and continued until six P. M. On the eighth began at seven A. M., and kept on until two A. M. the next day. On the ninth, from seven A. M. until three and a-half Р. M. when, her inward cargo being all discharged, she commenced taking in her return cargo. She sailed again for Liverpool on the tenth. The invoices for the respective consignees were not discharged separately and distinctly, but the goods came out promiscuously and irregularly as they were reached. These cases were landed on a wharf or pier, No. 44, North river, leased by the defendant, and used by it exclusively. After being landed they were checked by Mr. Mills, acting in behalf of the ship, and also by a custom house officer in attendance, whose duty it was to direct where the goods should be sent, in accordance with the entry previously made, and the permit granted thereon. The cases, including the missing one, had been entered for warehousing, and the bonded warehouse No. 286 Water street had been designated as the warehouse to which they should be sent. The defendant had a delivery clerk, whose duty it was to superintend the delivery of all goods to the carman who carried them away from the pier. He occupied a little office outside of the gate, near the wharf. It was his general, if not uniform practice, to take receipts from the master carmen for the goods carted by them and their men as they left the pier. He was furnished by the defendant with printed blank receipts, which he filled in with the marks and numbers of the packages put on the carts, and to these he took the signatures of the master carmen and filed them away. Such a receipt, dated March eighth and ninth, for twenty-two of the twentythree packages he produced on the trial. For the twenty-third case, No. 1,609, the case in dispute, he had no receipt. At the close of the testimony the referee was requested by the defendant's counsel to find as follows: 1. That the case of merchandise in the complaint men Statement of case. tioned was discharged at a proper and reasonable time and place, at the city of New York, on due notice, and that such discharge was a full delivery according to law and the usage of the port of New York, as proved, and discharged the defendant from all responsibility therefor, which the referee declined to find, and defendant's counsel excepted. 2. That the said case of merchandise being foreign merchandise, received at this port, entered in bond by the plaintiff, was delivered on the wharf into the hands of the United States authorities, or placed under their custody or control, and that such disposition of such case was a sufficient delivery and discharge of this defendant of its obligations of the contract of carriage, which the referee declined to find, and defendant's counsel excepted. 3. That under the evidence presented, and the law applicable to this case, the defendant was entitled to a report and judgment in its favor, which the referee declined to find, and defendant's counsel excepted. The referee found in his report, as matter of fact, that the defendant had failed to deliver to the plaintiff the box of merchandise in question, and that it was of the value of $971.88, and he found as a conclusion of law, that the plaintiff was entitled to judgment for the said sum, with interest. To both of these findings defendant excepted. Judgment was duly entered upon said report. H. Nicoll, for appellant. The order not stating that the reversal was on questions of fact, only questions of law can be examined. (Code, § 248; Baldwin v. Van Dusen, 37 N. Y., 487; Shibley v. Angle, 37 N. Y., 626.) To relieve carriers from responsibility, notice must be given and a reasonable time for removal. (Richardson v. Goddard, 23 How. U. S., 25; see also Ostrander v. Brown, 15 John., 39; Gibson v. Culver, 17 Wend., 305; Fiske v. Newton, 1 Den., 45; Gatliff v. Bourne, 4 Bing. N. C., 321; Same v. Same, in Excheq. Ch., 3 Man. & Grang., 643; Same v. Same, House of Lords, 11 Opinion of the Court, per ALLEN, J. Clark & Fin., 45; Norway Plains Co. v. Boston and Maine R. R., 1 Grey, 263.) J. W. Gerard, for respondent. Upon the deposit of goods at the usual wharf or other proper place, and upon reasonable notice of the arriving and unlading, a carrier by water is discharged from responsibility. (The ship Grafton, Admiralty R., 43; Fields v. Peacock, Manuscript Decisions; Kennedy v. Dodge, 1 Bard. D. C., 311; Cope v. Cordova, 1 Rawle. Penn. R., 203; Edwards on Bailments, 532–534; Story on Bailments, §§ 544, 545; Richardson v. Goddard, 23 How. U. S., 28; Angell on Carriers, §§ 310, 311; Northern v. Williams, 6 La., 578; The Norway (reported 12 Law Times, N. S.), 57; Ely v. New Haven Steamboat Co., 53 Barb., 207.) The goods were delivered to the custom-house receivers, and they and not defendant were bound to account for them. (Laws of U. S., of Aug. 6, 1846, vol. 9; U. S. Stat. at Large, 53; Law of March 28, 1854, vol. 10, p. 270; Harris v. Devine, 3 Peters, 292.) ALLEN, J. The Supreme Court has reversed the judgment entered upon the report of the referee and ordered a new trial. As it is not stated in the judgment of reversal, that it was on questions of fact, the judgment must be deemed to have been reversed on questions of law, and the facts are not open to review in this court. (Code, §§ 268, 272; Baldwin v. Van Deuzen, 37 N. Y., 487.) The referee has found that the defendants, as common carriers by water, received the plaintiff's merchandise at Belfast, Ireland, to be carried from there to New York, and there delivered to the owner, the bill of lading exempting the carriers from certain risks, by none of which were the goods lost; that the vessel in which the goods were shipped arrived at her port of destination having the goods on board, and that twenty-two of the twenty-three cases were delivered to the plaintiff, and that the defendants failed to deliver the remaining case or box. |