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Universal Ltd. v. S. Stern & Co.

34 A.D.2d 770 Court N.Y. App. Div. Decision date 1970-05-19 English

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p. 770
Universal Ltd., Inc., Respondent-Appellant, v. S. Stern & Co., Appellant-Respondent, et al., Defendant.

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.

p. 771
Co., 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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