Kaplan Products & Textiles, Inc. v. Chelsea Fireproof Storage Warehouse, Inc.

9 Misc. 2d 273, 163 N.Y.S.2d 705, 1957 N.Y. Misc. LEXIS 2855

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 17, 1957
• Status: Published

Opinion

Per Curiam.

The complaint and proof are founded upon appellant’s conversion of the goods. The proof adequately established the delivery to appellant, its failure to return the goods and complete absence of any explanation by appellant for such failure. In the circumstances, in an action for conversion by the warehouse itself, the limitation of liability clause in the warehouse receipt does not constitute a valid defense to recovery of the full value of the goods not returned (Menuez v. Julius Kindermann & Sons, 19 F. Supp. 7, 8; Glinsky v. Dunham & Reid, Inc., 230 App. Div. 470; D’Utassy v. Barrett, 219 N. Y. 420, 424; see, also, Castorina v. Rosen, 290 N. Y. 445, 447).

The judgment should be modified to the extent only of remitting the case to the court below for proper proof of respondent’s damages, with $25 costs to the appellant.

Hecht, Aurelio and Tilzer, JJ., concur.

Judgment modified, etc.