Rudolph Wurlitzer Co. v. Barrett

154 N.Y.S. 226

Opinion

GUY, J.

The plaintiff has recovered damages herein for injuries to its motor, shipped by the Picturedome Company through the defendant to plaintiff’s place of business in New York City. The defendant tendered the motor at the plaintiff’s store on November 26, 1913, but the plaintiff refused to take it, because., as plaintiff claims, it was damaged while in the custody of the defendant.

The express receipt, which is the contract of shipment and was put in evidence by the plaintiff, provides that the defendant shall not be liable in any suit to recover for loss or damage unless the action shall be commenced within one year after such loss or damage. This action was not begun until February 9, 1915, more than a year after the damage to the motor.

[1, 2] Respondent contends that, as the limitation referred to was not pleaded, it cannot be availed of by the appellant. The pleadings were oral, and the defendant pleaded “General denial and special contract.” Moreover, plaintiff, having offered the receipt in evidence, was bound by its terms, and defendant was entitled to the benefit thereof. Burke v. Erie R. R., 134 App. Div. 413, 119 N. Y. Supp. 309; Jonasson v. Weir, 130 App. Div. 528, 115 N. Y. Supp. 6.

Judgment reversed, with costs, and complaint dismissed, with costs. All concur.