A. C. Cheney Piano Action Co. v. New York Central & Hudson River Railroad

Headnote

Cheney Piano Action Co. v. N. Y. C. & H. R. R. R. Co., 166 App. Div. 706 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department,

entered March 29, 1915, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury in an action against defendant as an interstate commerce carrier, to recover the stipulated and agreed value of two shipments of piano actions, made by the plaintiff through the defendant as such carrier at Castleton-on-the-Hudson, N. Y., to, Starr Piano Company, Richmond, Ind., and which were lost and never delivered to the consignee. The bills of lading contained the following provision: “ Claims for loss, damage or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after the delivery of the property, or in case of failure to make delivery then within four months after a reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable.” The defense was that no claim had been presented within four months after a reasonable time for delivery had elapsed. The trial judge found and decided as a matter of fact that the defendant had waived any defense it may or might have had arising from, growing out of or based upon the four months’ clause or provision in the bill of lading.