108 N.Y.S. 1113 | City of New York Municipal Court | 1908
On September Ó, 1907, at Arveme, borough of Queens, New York city, the plaintiff delivered to the defendant, who is a common carrier controlling, operating and conducting “ The Long Island Express,” her certain trunk with its contents, to be carried and delivered by the defendant to her home, No. 1275 Madison avenue, borough of Manhattan, New York city. The testimony of the plaintiff was not contradicted in regard to the contents of the trunk showing apparel, etc., of the value of $1,192.88, and it was conceded by the defendant that it received the trunk as a common carrier ; that it never delivered the same to the plaintiff, and that it was lost while in the custody and possession of the defendant. Among the contents of the trunk was a certain manuscript -of a proposed school reader of the alleged value of $400, and which value was accepted by the jury, as appears by its verdict. The defendant contested plaintiff’s recovery upon the ground that, admitting it received the trunk and the same was not delivered to plaintiff, the trunk was delivered to the defendant under a special contract wherein its liability was limited to the sum of $50. The jury foun¿l for the plaintiff upon the trial and rendered a verdict for the full amount demanded, $1,192.88; defendant moved to set aside the verdict upon the ground that the verdict was contrary to the law, contrary to the evidence, and that the verdict should be reduced to the sum of $50. Counsel for the plaintiff, in opposition to the motion to set aside the verdict, assumes the position that while it is true the receipt was received by the plaintiff, and by the provisions of which the defendant limited its liability to $50, nevertheless, the plaintiff is entitled to recover the full amount upon the common law liability of the defendant, claiming that the receipt in evidence was in contravention of section 38 of the Public Service Commissions Act (Laws of 1907, chap. 429) and consequently void. The plaintiff in this action is the principal of a public school, a woman of high order of intelligence, and was sojourning with a relative at Arverne, L. I., on the 3d day of September, 1907. On -that day, being desirous of sending her trunk to New York, she deposited therein considerable wearing apparel, a piece of jewelry and also the manuscript of a book,
Ordered accordingly.