Universal Ltd. v. S. Stern & Co.

Appellate Division of the Supreme Court of New York

Universal Ltd. v. S. Stern & Co.

34 A.D.2d 770, 311 N.Y.S.2d 317, 1970 N.Y. App. Div. LEXIS 4813

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 19, 1970

StatusPublished

Cited by3 cases

This text of 34 A.D.2d 770 (Universal Ltd. v. S. Stern & Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Universal Ltd. v. S. Stern & Co., 34 A.D.2d 770, 311 N.Y.S.2d 317, 1970 N.Y. App. Div. LEXIS 4813 (N.Y. Ct. App. 1970).

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Opinion

Judgment entered May 7, 1969, after a nonjury trial, awarding recovery to plaintiff in the first and second causes against the defendant J. & J. Trucking Co., Inc., and against the defendant S. Stern & Co. on the third cause of action in the sum of $18,576.88, with interest, unanimously modified on the law, to the extent of vacating the latter judgment on the third cause of action against Stern, and a new trial on that single cause of action is directed; except as modified, the judgment is affirmed, with $50 costs and disbursements to defendant S. Stern & Co. An agent engaged to arrange for the shipment of goods, absent express instructions to the contrary from his principal, has authority to enter into a usual and customary shipping contract which limits the carrier’s liability. The agent has only the duty to make a reasonable choice as to the carrier with whom he contracts. (Field v. Banker, 9 Bosw. 467, 479; see Nelson v. Hudson Rim. R. R. [771]*771Co., 48 N. Y. 498; Northern Assur. Co. v. Walk, 182 Mise. 112, affd. 269 App. Div. 768; 1 Mechem, Agency [2d ed.], §§ 1044-1046; 13 C. J. S. Carriers, § 92. Evidence as to custom in the business and the course of dealing between Universal and Stern was relevant. It should have been accepted by the trial court as directly bearing upon the issue as to whether Stern acted with due care and within the knowledge of Universal and Stern’s customary practice and authority in effecting the wishes of Universal. (See Northern Assur. Co. v. Wolk, supra-, Fifth Nat. Bank v. Navassa Phosphate Co., 119 N. Y. 256; 1 Mechem, Agency [2d ed.], § 717; cf. Uniform Commercial Code, § 1-205, subds. [1], [3].) The refusal of the trial court to consider this latter evidence excluded knowledge as to the conduct and practice of the parties. This was error (Janos v. Peck, 21 A D 2d 529), and of sufficient substance to necessitate a new trial. (See Be Carlton v. Glaser, 172 App. Div. 132, affd. 225 N. Y. 687.) Concur— Capozzoli, J. P., McGivern, Markewich, Nunez and Steuer, JJ.

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Judgment entered May 7, 1969, after a nonjury trial, awarding recovery to plaintiff in the first and second causes against the defendant J. & J. Trucking Co., Inc., and against the defendant S. Stern & Co. on the third cause of action in the sum of $18,576.88, with interest, unanimously modified on the law, to the extent of vacating the latter judgment on the third cause of action against Stern, and a new trial on that single cause of action is directed; except as modified, the judgment is affirmed, with $50 costs and disbursements to defendant S. Stern & Co. An agent engaged to arrange for the shipment of goods, absent express instructions to the contrary from his principal, has authority to enter into a usual and customary shipping contract which limits the carrier’s liability. The agent has only the duty to make a reasonable choice as to the carrier with whom he contracts. (Field v. Banker, 9 Bosw. 467, 479; see Nelson v. Hudson Rim. R. R. [771]*771Co., 48 N. Y. 498; Northern Assur. Co. v. Walk, 182 Mise. 112, affd. 269 App. Div. 768; 1 Mechem, Agency [2d ed.], §§ 1044-1046; 13 C. J. S. Carriers, § 92. Evidence as to custom in the business and the course of dealing between Universal and Stern was relevant. It should have been accepted by the trial court as directly bearing upon the issue as to whether Stern acted with due care and within the knowledge of Universal and Stern’s customary practice and authority in effecting the wishes of Universal. (See Northern Assur. Co. v. Wolk, supra-, Fifth Nat. Bank v. Navassa Phosphate Co., 119 N. Y. 256; 1 Mechem, Agency [2d ed.], § 717; cf. Uniform Commercial Code, § 1-205, subds. [1], [3].) The refusal of the trial court to consider this latter evidence excluded knowledge as to the conduct and practice of the parties. This was error (Janos v. Peck, 21 A D 2d 529), and of sufficient substance to necessitate a new trial. (See Be Carlton v. Glaser, 172 App. Div. 132, affd. 225 N. Y. 687.) Concur— Capozzoli, J. P., McGivern, Markewich, Nunez and Steuer, JJ.

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34 A.D.2d 770, 311 N.Y.S.2d 317, 1970 N.Y. App. Div. LEXIS 4813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/universal-ltd-v-s-stern-co-nyappdiv-1970.

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