191 Misc. 14 | City of New York Municipal Court | 1947
This action has been submitted to the court upon an agreed statement of facts, from which it appears that on June 4, 1946, the plaintiffs delivered to defendant, for storage purposes, a fur coat, at which time defendant executed and delivered to plaintiffs its fur storage agreement (plaintiffs’ Exhibit 2 in evidence) designated therein as Permanent Fur Storage Receipt No. S 8573. It further appears from the stipulation of facts that as plaintiffs knew, defendant’s storage charges are graduated in accordance with the customer’s valuation of the article stored; that at the time of delivery of the coat to,the defendant, the plaintiffs stated that they wished o place a minimum valuation of $50- on the coat inasmuch as plaintiffs had procured and were covered by a policy of insurance carried by them for their own account; that on two previous occasions, to wit, April 29, 1945, and May 5, 1944, plaintiffs had likewise stored said fur coat with defendant and on each of these occasions defendant had issued to plaintiffs similar receipts containing the same terms and conditions as plaintiffs’ Exhibit 2 and wherein on each of these occasions the valuations set forth
The issue thus presented to the court for determination is whether by reason of the foregoing facts and plaintiffs’ Exhibit 2, the defendant’s liability is limited to the sum of $50 stated in the storage agreement.
Upon a study of plaintiffs’ Exhibit 2 we find therein the following language: “ Permanent Fur Storage Receipt No. S 8573 ”; “ Kind of Garment A: Gray Persian Coat; Customer’s Valuation $50 — ; storage charges $5 — ; Does customer carry own insurance? Yes X ”. “ Notice to the Customer: * * * The articles described herein are received only in accordance with the terms and conditions of the agreement on the reverse side hereof.” On the reverse side the following terms and conditons are set forth: “ Teems and Conditions oe This Agbeement: 1. Trencher Furs, Inc., agrees to take for storage the articles listed on the reverse side hereof and to procure insurance for said articles, at its own expense unless said articles are received for storage only or the customer carries his or her own insurance thereon. * * # 3. In the event of loss or damage to any article, the customer shall not be entitled to recover more than the respective valuation of such articles stated on the reverse side hereof nor in any event, more than the cost to repair or replace the article with furs or materials of like kind and quality. 4. In the event of loss or damage, Trencher Furs, Inc., shall have the option, in full satisfaction of all claims, of, (a) paying to the customer the sum of money received from the insurance company by reason of said loss or damage, or, (b) repairing, replacing or restoring such articles to as good a condition as when received by it.”
I have examined the opinion of Judge Coxe in Taccetta v. Rice & Rogovin (75 F. Supp. 373, U. S. Dist. Ct., S. D. N. Y.), and although I have great respect for his views, I am inclined to believe that New York law must prevail.
Accordingly, I find in favor of plaintiffs for the sum of $50, the amount of the defendant’s limited liability. No interest or costs, pursuant to the stipulation herein.