207 A.D. 461 | N.Y. App. Div. | 1924
On the 17th day of September, 1919, plaintiff shipped by freight from Lake Placid, N. Y., to himself at Syracuse, N. Y., over the Delaware and Hudson railroad, six boxes containing books, and one trunk containing various articles, which were all the property of plaintiff. The books arrived in Syracuse on the 1st day of October, 1919, over the Delaware, Lackawanna and Western railroad, which was the delivering carrier. The trunk, which had been shipped at Lake Placid at the same time that the boxes were shipped, was never received by plaintiff, and this action was brought to recover the value of the trunk and its contents.
The fact that the boxes shipped by plaintiff from Lake Placid at the same time he shipped the trunk, and all addressed to himself at Syracuse, arrived at their destination on the 1st day of October, 1919, is sufficient in the absence of other evidence to establish the fact that a reasonable time for such shipment to be transported from Lake Placid to Syracuse, was the time between the seventeenth of September, when the goods were shipped, and October first, when part of the consignment was received — thirteen days.
When the goods were shipped a bill of lading was issued to plaintiff, which provided that in case the goods were not delivered a claim must be made in writing to the originating or delivering carrier within six months after a reasonable time for delivery had elapsed, and suit for loss, damage or delay should be instituted within two years and one day after a reasonable time for delivery had elapsed. This Hmitation was reasonable and justifiable to afford some protection to the carrier against possible fraud. (Murray v. Cunard Steamship Co., 235 N. Y. 162.)
This action was not begun until the 22d day of December, 1921, which was nearly two years and three months after the boxes had arrived at their destination No written claim was made by
On the 27th day of May, 1921, plaintiff was notified by letter that the United States Railroad Administration had rejected the claim on the ground that it had not been seasonably made. On the 15th of September, 1921, plaintiff was again notified by letter by the United States Railroad Administration that his claim was rejected because it had not been made within six months after a reasonable time for delivery of this shipment, and again on the 21st day of September, 1921, the United States Railroad Administration notified plaintiff by letter that inasmuch as his claim was not made within the time limit provided in the bill of lading, his claim could not be lawfully paid.
The two-year-and-one-day limit within which to bring action for damages for a shipment not delivered would not have expired until October 3, 1921, but plaintiff delayed enforcing his claim by bringing an action until that time limit had expired, for the action was not commenced until December 22, 1921.
Plaintiff seeks to escape responsibility for not observing the limitations pointed out in his bill of lading by asserting that by correspondence and conversations had between himself and representatives of the railroad between October 1, 1919, and the time of the beginning of the action defendant had waived the limitations.
While plaintiff testified that on the 1st day of October, 1919, when he receipted for the boxes of books, he signed a claim for the lost trunk, no such claim was introduced in evidence, and it is plain that all he did was to sign a receipt for the boxes, the receipt containing a statement that the shipment was short the trunk, which was consigned at the same time. That surely was not filing such a claim as was provided for in section 3 of the conditions attached to the bill of lading.
While undoubtedly such a claim could be somewhat informal, it must necessarily be of such a character that the railroad would be furnished sufficient information as to the character of the claim and notice of intention to claim compensation for a suffered loss. (Bronstein v. Payne, 138 Md. 116; 113 Atl. Rep. 648; St. Louis, Iron Mt. & So. R. Co. v. Starbird, 243 U. S. 592.)
The letter (Exhibit 3) written by the superintendent of transportation of the Delaware and Hudson Company to plaintiff, dated
He was promptly notified that he was too late, but he still had plenty of time in which to have brought his action within the time limited in the bill of lading, but he again slept on his rights and waited until that time had expired.
The court submitted to the jury the question whether or not defendant had waived the provisions of the bill of lading with reference to making claim for undelivered property within six months after a reasonable time for delivery had elapsed, and the disposition of that question by the jury is warranted by the evidence. (Cheney Piano Action Co. v. N. Y. C. & H. R. R. R. Co., 166 App. Div. 706; affd., 222 N. Y. 557.)
Plaintiff is presumed to have known the conditions attached to the bill of lading received by him when the shipment was made. He seemingly ignored its important provisions and did not begin suit to recover damages for the undelivered property within the time specified in the bill of lading, and there is nothing in the correspondence or conversations plaintiff had with representatives of the railroad company that would justify a finding that the carrier had waived the provisions of the bill of lading in respect to the time within which suit should be brought to recover such damages.
Under the evidence it is plain that plaintiff’s action was commenced too late, and his claim is barred by the express terms of the bill of lading.
The judgment and order should be reversed on the law, and the complaint dismissed, with costs.
All concur, except Davis, J., who dissents and votes for affirmance on the ground that what constitutes a reasonable time for delivery is a question of fact and cannot, under the evidence in this case, be determined as a question of law.
Judgment and order reversed, on the law, with costs, and complaint dismissed, with costs.
