Stern v. American Railway Express Co.

120 Misc. 110

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 15, 1923
• Status: Published

Opinion

Per Curiam. .

The trial court having correctly held that as matter of law plaintiff had not complied with the provisions of defendant's uniform express receipt in respect to giving defendant notice after a reasonable time for the delivery of the goods had elapsed, as the defendant could not waive the provision of the contract requiring such notice (Georgia, Fla. & Ala. Ry. v. Blish Co., 241 U. S. 190), the complaint should have been dismissed.

We cannot find that the record presented this point for adjudication by the Court of Appeals in Cheney Piano Action Co. v. New York C. & H. R. R. R. Co., 222 N. Y. 557, which in our opinion explains the apparent inconsistency between the fedeial and the state decision.

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

All concur; present, Guy, Bijur and Delehanty, JJ.

Judgment reversed.