23 Misc. 356 | N.Y. App. Term. | 1898
This action was brought to recover the value of certain packages of liquors consigned by the plaintiff to one William Benz, at Ridgewood Hotel, Pleasant Plains, Staten Island, New York, and which the defendant, through error, delivered to a person other than the consignee. The goods were delivered by the'plaintiff to the defendant at the city of New York, on the 15th day of January, 1897. The bill of lading, among other things, provides:
“ Claims for loss or damage must be made in writing to the agent at the point of delivery promptly after arrival of the property, and if delayed for more than thirty days after the delivery of the property, or after due time for the delivery thereof, no carrier hereunder shall be liable in any event.”
It is conceded that no claim for the loss of the property was made until sixty days after the delivery thereof to the defendant. The defendant contends that such stipulation was a condition precedent to its liability and that unless complied with no recovery can be had.
Common carriers may, by contract, limit their common-law liability when the limitation is reasonable in its character. Jennings v. G. T. R. Co., 127 N. Y. 438, 451, and citations.
And a provision similar to the one under consideration has been held to be reasonable. Smith v. Dinsmore, 9 Daly, 188; Hirshberg v. Dinsmore, 12 id. 429; Kaiser v. Hoey, 1 N. Y. Supp. 429; Lewis v. Great Western Ry. Co., 5 Hurl. & Norm. 867; Express Co. v. Caldwell, 21 Wall. 264; Weir v. Express Co., 5 Phia. 355, opinion by Sharswood, J.; Southern Ex. Co. v. Hunnicutt, 54 Miss. 566; Black v. W. St. L. & P. R. Co., 111 Ill. 351.
In the case of Lewis v. Great Western Ry. Co., supra, the condition in the bill of lading 'was that no claim for deficiency, damages or detention would be allowed unless made within three days after the delivery of the goods, nor for loss unless made within seven days from the time they should have been delivered. This was held to be a reasonable condition. And in the case of the Express Co. v. Caldwell, supra, Mr. Justice Strong, who delivered the opinion of the court, comments upon that case and says that (p. 270) “the onus was imposed upon the shipper of ascertaining whether the goods had been delivered at the time they should have been, and in case they had not, of making his claim within seven days thereafter.” The case at bar seems to come within the principles of the decisions above referred to, and as the condition under
The judgment must, therefore, be reversed and a new trial ordered in the Municipal Court in the district in which the action was brought, with costs to the appellant to abide the event.
Beekman, P. J., -and Gildersleeve, J., concur.
Judgment reversed and new trial ordered in the Municipal Court, with costs to appellant to abide event.
