47 Misc. 642 | N.Y. App. Term. | 1905
Lead Opinion
On November 14, 1904, the plaintiff called at the office of the defendant express company, at No. 81 Dey street, in the city of New York, and gave its agent three baggage cheeks representing three trunks then lying at the depot of the Jersey Central railroad, foot of Liberty street (over which route she had just come to this city), for the purpose of having the same delivered to an address then given by her. She received a receipt therefor in the usual printed form issued by defendant, and at the time she was asked by its iagent if she wished to declare extra value for so short a distance, to which she made no reply. By said receipt, defendant’s liability was limited to fifty dollars, unless an extra charge was paid for the service, based on a higher value. After apparently looking at the receipt and paying the ordinary charge of forty cents for each trunk she kept the receipt and left the defendant’s office. Two of the trunks were delivered; the third was lost. Proof was given that there was property belonging to plaintiff in the trunk lost, of the value of forty-nine dollars and fifty cents; and be
Judgment affirmed, with costs.
Dissenting Opinion
(dissenting). In my opinion the judgment cannot be sustained. The clause in the receipt limiting the defendant’s liability unless value was stated, was printed on the face of the document and italicized by the use of black-faced type. The plaintiff was expressly asked whether slie wished to declare extra value and made no reply. The room in which the transaction occurred was sufficiently light
The judgment should be modified by reducing it to fifty ■dollars, with the appropriate costs in the court below, and as modified be affirmed, without costs in this court.
Judgment affirmed* with costs.
Concurrence Opinion
(concurring). I think that the words used by the defendant’s agent, “ I don’t suppose you want any extra value on these as they are only going to Twenty-third street,” were sufficient to put the plaintiff off her guard, and that they did not give plaintiff notice that the voucher embodied a special contract, or that it was intended to serve any other purpose than as a voucher. And that, therefore, her omission to read the voucher was not per se negligent, and she was not as a matter of law bound by its terms.
The questions of fact were left for the determination of the jury, and I am in favor of affirming the verdict.