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Monsees v. Western Union Telegraph Co.

111 N.Y.S. 53 Court N.Y. App. Div. Decision date 1908-06-12 English

Delivered by RICH, J.

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p. 53
MONSEES v. WESTERN UNION TELEGRAPH CO.
(Supreme Court, Appellate Division, Second Department.
June 12, 1908.)

Headnote

Telegraphs and Telephones—Unrepeated Messages—Liability for Delayed Delivery.
Plaintiff cannot recover from a telegraph company for delay in delivering an unrepeated message, addressed as sent to “H. J. Monsees,” and to “H. J. Monse” as delivered, where the blank upon which it was written contained a stipulation exempting the company from liability for mistakes or delays in transmitting or delivering, or for nondelivery of, an unrepeated message.
[Ed. Note.—Eor cases in point, see Cent. Dig. vol. 45, Telegraphs' and Telephones, § 43.]
Appeal from Trial Term, Westchester County.
Action by Henry J. Monsees against the Western Union Telegraph Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.
Reversed, and new trial granted.
Argued before WOODWARD, JENKS, HOOKER, RICH, and MIEEER, JJ.
Francis Raymond Stark (George H. Fearons, on the brief), for appellant.
Arthur L. Fullman, for respondent.

The question presented by this appeal has been decided in Halsted v. Postal Telegraph Cable Co., 120 App. Div. 433 , 104 N. Y. Supp. 1016 . A telegram was sent to plaintiff from Brooklyn by Provost Bros. Company, his brokers, on ,August 5, 1903, requiring an additional margin of $2,000 and giving notice that if the same was not sent immediately the stock purchased for him would be sold to protect the senders. It was an unrepeated message, written upon the general blank of the company, containing the same stipulations and conditions that were contained in the telegram considered in the- Halsted Case, and was written at the office of the senders by their acting cashier. When delivered to the defendant for transmission it was addressed to “H. J. Monsees, Unger Cliff Hotel, Mt. Kisco, New York.” It reached Mount Kisco addressed to “H. J. Monse, Unger Cliff Hotel,” and was not delivered to plaintiff until August 7th, when he went to the office of the defendant and called for the telegram, which was delivered to him. His stock was sold by his brokers on August 6th, resulting in an alleged loss to plaintiff of his entire margins, amounting to $4,300, $450 of which he has recovered in this action.

The negligence alleged in the complaint is the improper transmission and the delay in delivering the message. The principle decided in Halsted v. Postal Telegraph Cable Co., supra, is applicable to nondelivery, or delay in delivery, as well as to an error in language in transmission. It has been followed by this court in Bates v. Weir, 121 App. Div. 275 , 105 N. Y. Supp. 785 , and by the Appellate Term in Addoms v. Weir, 56 Misc. Rep. 487 , 108 N. Y. Supp. 146 , and is in accord with the views of the Court of Appeals as expressed in Kiley v. Western Union Telegraph Co., 109 N. Y. 231 , 16 N.

p. 54
The judgment and order must be reversed, and a new trial granted; costs to abide the event. All concur; MILLER, J., in result, being of the opinion that the contract would not relieve from liability for nondelivery or delay in delivery, unless such nondelivery or delay were caused by an error in transmission.

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