181 A.D. 764 | N.Y. App. Div. | 1918
This action was originally brought against the New York Central and Hudson River Railroad Company (predecessor of the defendant the New York Central Railroad Company) and the Michigan Central Railroad Company, hereinafter respectively called the New York Central and the Michigan Central. The complaint set forth three causes of action against both defendants. It was alleged therein that on or about August 25, 1913, the plaintiff entered into an agreement with the defendant New York Central whereby the latter agreed to ship certain machinery belonging to the
The appellant acknowledged its liability in the sum of $63.71, being the claim set forth in the first cause of action, for the reason that the proof showed that the machinery arrived at Suspension Bridge in good condition, where it passed into its custody and the appellant was unable to show how or where it was damaged, if not upon its own lines between Buffalo and New York. Upon the second cause of action the jury found in favor of the plaintiff in the sum of $156. On the third cause of action the jury found in favor of the defendant. Upon the trial the plaintiff consented to a dismissal as against the Michigan Central, conceding it had established no cause of action against it. The plaintiff now appeals from the finding of the jury on the third cause of action in favor of the defendant and also from the refusal to allow it larger damages upon the second cause of action than the sum of $156. The defendant appeals from the verdict of the jury against it on the second cause of action in the sum of $156.
The plaintiff endeavors to establish its claim of a special agreement by the New York Central to forward the goods in question from Detroit to New York and to have them arrive there not later than the fourth morning after they were delivered to it at Detroit, by the testimony of Emil Grossman, president of the plaintiff, who claims that at a meeting between him and Thomas Newman, soliciting freight agent, of the New York Central, held at the plaintiff’s office on either August twenty-fifth or twenty-sixth, Grossman told Newman that the plaintiff was about to remove its entire factory and abandon manufacturing in Detroit, and as the material to be moved would occupy at least four cars and as delay would involve great hardship and expense, the plaintiff desired to send its material by the railroad that would deliver it in the shortest time possible. Grossman said he tried to have Newman agree to get the freight to New York in two days, but while the latter admitted it could be done, he said he would not undertake to do it, and finally said it would be done in three days or
Furthermore, there is neither claim nor proof that this alleged agreement to expedite the delivery of the plaintiff’s goods was based upon any agreement by the plaintiff to pay a higher rate than that exacted for ordinary shipments. It has been held that a carrier who agrees to expedite a shipment in interstate commerce assumes a more burdensome liability and can exact a higher rate than where mere carrier liability exists; that an interstate carrier can assume an extra liability for expediting provided it makes and publishes a rate therefor
It follows, therefore, that the judgment appealed from should be modified by deducting therefrom the sum of $156 awarded upon the second cause of action, and as so modified affirmed, with costs to the respondent, appellant, New York Central Railroad Company.
Clarke, P. J., Smith, Page and Shearn, JJ., concurred.
Judgment modified as stated in opinion, and as modified affirmed, with costs to the New York Central Railroad Company. Order to be settled on notice.