1 Daly 408 | New York Court of Common Pleas | 1865
By the Court.
It is a well settled rule of law that if freight is paid in advance,and in consequence of the capture or shipwreck of the vessel, or other cause beyond the control of the master or owners, the goods are not carried to the place of destination, the freight is not earned, and may be recovered back, unless a special agreement was made to the
Where a general rule or principle of law like this has been long and well established, it cannot be controlled by proof of any usage to the contrary (Hone v. Mutual Insuran e Co., 1 Sandf. S. C. R., 149; Frith v. Barker, 2 Johns. R., 327; Rankin v. The American Ins. Co., 1 Hall R., 619; Bowen v. Newell, 4 Seld. R., 195 ; Schieffelin v. Harvey, Anthon’s N. P. R., note 1, 2d ed., p. 80).
This disposes of the defendant’s answer, which was an attempt to set up that by an “ immemorial custom and usage in the United States, and in the State of New York,” freight is not repaid in such a case, but is retained by the ship owner.
Judgment was therefore properly given for the plaintiff on demunvr, and the decision at Special Term must be affirmed.
Judgment affirmed.