Simon v. Dunlap's Express Co.

38 Misc. 775, 78 N.Y.S. 1136

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1902
• Status: Published

Opinion

MacLean, J.

Certain bailees of the plaintiff, acting through their messenger delivered to the defendant, a common carrier, a parcel of laces addressed to the plaintiff, and the owner at the same time told the person who received the goods for the company, that he should be very careful with the package as they were expensive curtains. The goods were not delivered. Nor upon the trial of this action brought for the recovery of their value, did the defendant offer anything in defense, excepting a receipt taken by the bailees on the defendant’s printed form upon the bottom of which were the words: “ It is agreed that we shall not be held liable or responsible, nor shall any demand be made upon us beyond the sum -of fifty dollars, at which sum said property is hereby valued, unless the just and true value thereof is stated herein; nor upon any property or thing unless properly packed and secured for transportation.” Upon its failure to deliver the parcel, the plaintiff, under the doctrine of Swift v. Pacific Mail S. S. Co., 106 N. Y. 206, was entitled to' maintain this action against the defendant for the value of his goods delivered by those acting for him and received for transportation. His recovery is not limited to the amount fixed in the receipt, which does not protect the carrier against its own negligence, especially in the absence of explanation of nondelivery. Magnin v. Dinsmore, 56 N. Y. 168; Blum v. Monahan, 36 Misc. Rep. 179. The judgment should be affirmed.

Freedman, P. J., and Gildersleeve, J., concur.

Judgment affirmed, with costs.