H. R Mallison & Co. v. Barrett

215 A.D. 524, 213 N.Y.S. 652, 1926 N.Y. App. Div. LEXIS 11001

Opinions

Clarke, P. J,

The facts are sufficiently stated in the dissenting opinion of Mr. Justice Martin. The plaintiff is estopped (Kansas City Southern R. Co. v. Carl, 227 U. S. 639) by its declared valuation of the five bales of silk of $1,375. It cannot recover $818.50 for the loss of one bale. ( United Lead Co. v. Lehigh Valley R. R. Co., 156 App. Div, 525; affd., 215 N. Y. 751.) The determination appealed from should, therefore, be modified by directing that the judgment of the Municipal Court be modified by reducing the amount thereof as entered to the sum of $377.34, and as so modified affirmed, with costs to the appellant in this court and in the Appellate Term.

Dowling, Finch and McAvoy, JJ., concur; Martin, J., dissents.