Soumet v. National Express Co.

66 Barb. 284, 1873 N.Y. App. Div. LEXIS 165

Opinion

P. Potter, J.

I am satisfied that there must be a new trial, upon the authority of Belger v. Binsmore, (not yet reported,) decided by the Commission of Appeals in September last,

(a) That was a case upon all fours with this ; and the court held that the acceptance of a similar paper, without objection, though it was unread, constituted a contract between the parties; and that a verdict was properly directed for the plaintiff for the amount stated in the paper. That the plaintiff was bound by the action of Wolf Brothers’ “young man,” is settled by the case of Nelson v. Hudson River Railroad Co., (48 N. Y. 504.)

Therefore, the charge of the judge was erroneous in submitting this question to the jury. It was a question of law.

However reluctant we may be to sustain the action of carriers, in requiring such agreements to be received by their customers, we are bound to declare the law as it is found in the decision of the higher courts, and must bow to the rulings of the court of last resort.

Upon another trial the plaintiff may be able to show negligence, entitling her to recover; and I am therefore of opinion that the judgment should be reversed, and a new trial ordered, costs to abide the event.

Parker, J., concurred.

Miller, J., concurred in the result.

New trial granted.

Miller, Potter and Parker, Justices.]

Since reported, (51 N. Y. 166.)