Goldberg v. New York Central & Hudson River Railroad

Headnote

Goldberg v. N. Y. C. & H. R. R. R. Co., 164 App. Div. 389 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 12, 1914, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. It is alleged in the complaint that on or about September 17,1912, at New York city, the defendant, in consideration of the payment to it by the plaintiff of the usual freight rate for the transportation of dry goods from New York city to Cincinnati, agreed safely to carry to Cincinnati and there deliver to the plaintiff certain property of the value of $693.75, and that defendant did not carry said goods pursuant to said agreement, but on the contrary permitted same to become lost or stolen in transit. In its answer defendant set up as 'a separate defense that if it received the property mentioned in the complaint for transportation -the same was received by it pursuant to the terms of a written agreement wherein it was described as consisting of dry

goods; that defendant had theretofore filed with the interstate commerce commission copies of its classifications and schedules of rates for the transportation of dry-goods and furs from New York to Cincinnati, which provided for a first-class rate on dry goods and double first-class rate on furs; that defendant relied upon the description contained in the bill of lading issued by it for the transportation of the property and agreed to transport same at the rate provided in said tariffs and classifications for the transportation of dry goods; that the property was stolen in transit, and thereafter defendant learned that the case contained furs and not dry goods.