Gruen Industries, Inc. v. R. F. Downing & Co.

Appellate Division of the Supreme Court of New York

Gruen Industries, Inc. v. R. F. Downing & Co.

21 A.D.2d 643, 249 N.Y.S.2d 252, 1964 N.Y. App. Div. LEXIS 3877

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 5, 1964

StatusPublished

Cited by2 cases

This text of 21 A.D.2d 643 (Gruen Industries, Inc. v. R. F. Downing & Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gruen Industries, Inc. v. R. F. Downing & Co., 21 A.D.2d 643, 249 N.Y.S.2d 252, 1964 N.Y. App. Div. LEXIS 3877 (N.Y. Ct. App. 1964).

Pincite

Opinion

Order, entered on October 25, 1963, denying plaintiff’s motion for summary judgment and granting the cross motion of the defendant Giunta for leave to amend his answer, unanimously reversed on the law, with $20 costs and disbursements to appellant, and plaintiff’s motion for summary judgment granted, with $10 costs, the matter remitted for an assessment of the damages sustained by plaintiff based upon the value of the goods, and the cross motion for leave to amend the answer denied. The defendant, Giunta, resists plaintiff’s application for summary judgment solely on the ground of custom and that an oral agreement had been made whereby his liability was to be limited to $50 for each of the cartons shipped regardless of the actual value of the goods therein contained. It is contended [644]*644that whether or not such an agreement existed presents an issue of fact which can only ,be determined at a trial. However, before it may be concluded that such issue must be tried out, it must appear that the agreement, as alleged, is sufficient in law to limit the carrier’s liability as it purports to do. It must be demonstrated that “ the shipper has been given the option or choice of contracting for the carrier’s services without any restriction on the carrier’s liability” (7 N. Y. Jur., Carriers, § 198, p. 184). “Limitation imposed without choice of rates between limited and unlimited liability is not valid ” (Kilthau v. International Mercantile Mar. Co., 245 N. Y. 361, 365). The papers submitted in opposition to summary judgment are insufficient to show that the requisite “ option ” was available to the plaintiff. The defendant, Giunta, has failed to meet the requirement placed upon him to assemble and reveal his proofs in order to show that the matters set up in his proposed amended answer are real and capable of being established upon trial. Concur—Breitel, J. P., McNally, Stevens, Steuer and Staley, JJ.

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Order, entered on October 25, 1963, denying plaintiff’s motion for summary judgment and granting the cross motion of the defendant Giunta for leave to amend his answer, unanimously reversed on the law, with $20 costs and disbursements to appellant, and plaintiff’s motion for summary judgment granted, with $10 costs, the matter remitted for an assessment of the damages sustained by plaintiff based upon the value of the goods, and the cross motion for leave to amend the answer denied. The defendant, Giunta, resists plaintiff’s application for summary judgment solely on the ground of custom and that an oral agreement had been made whereby his liability was to be limited to $50 for each of the cartons shipped regardless of the actual value of the goods therein contained. It is contended [644]*644that whether or not such an agreement existed presents an issue of fact which can only ,be determined at a trial. However, before it may be concluded that such issue must be tried out, it must appear that the agreement, as alleged, is sufficient in law to limit the carrier’s liability as it purports to do. It must be demonstrated that “ the shipper has been given the option or choice of contracting for the carrier’s services without any restriction on the carrier’s liability” (7 N. Y. Jur., Carriers, § 198, p. 184). “Limitation imposed without choice of rates between limited and unlimited liability is not valid ” (Kilthau v. International Mercantile Mar. Co., 245 N. Y. 361, 365). The papers submitted in opposition to summary judgment are insufficient to show that the requisite “ option ” was available to the plaintiff. The defendant, Giunta, has failed to meet the requirement placed upon him to assemble and reveal his proofs in order to show that the matters set up in his proposed amended answer are real and capable of being established upon trial. Concur—Breitel, J. P., McNally, Stevens, Steuer and Staley, JJ.

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Bluebook (online)

21 A.D.2d 643, 249 N.Y.S.2d 252, 1964 N.Y. App. Div. LEXIS 3877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gruen-industries-inc-v-r-f-downing-co-nyappdiv-1964.

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