Shidlovsky v. Mallory Steamship Co. — 111 N.Y.S. 778

Majority

p. 778

SHIDLOVSKY et al. v. MALLORY S. S. CO. et al.

(Supreme Court, Appellate Term.

July 7, 1908.)

Headnote

1. Appeal and Error—Review—Parties Entitled to Allege Error—Dismissal as to Codefendant.

In an action against an initial and a connecting carrier for delay in the transportation of goods to another state, the initial carrier cannot complain of a judgment dismissing the complaint as to the connecting carrier, since the liability of the initial carrier is expressly determined by Act Cong. June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892), amendatory of Interstate Commerce Act, Act Feb. 4, 1887, c. 104, 24 S.tat. 379 (U. S. Comp. St. 1901, p. 3154), requiring the issuance of a receipt or bill of lading by the initial carrier for goods so received.

2. Carriers — Transportation of Goods — Limitation of Liability — Contracts—Validity.

Under Act Cong. June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892), amendatory of Interstate Commerce Act, Act Feb. 4, 1887, c. 104, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3154), regulating the liability of common carriers receiving property for transportation from one state to another, and providing that “no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed,” a clause in a bill of lading accepted by a shipper, purporting to exempt the carrier from a liability imposed by the statute, is ineffectual.

3. Same—Damages—Diminution.

In an action against a carrier for unreasonable delay in the transportation of certain goods, a statement put in the record by counsel for defendant, with the consent of plaintiffs’ attorneys, that on “the 26th day of December,” the year not appearing, “the goods in question were sold for $163.28” at a certain place, it not appearing that such sale was made by or with the consent of, or upon notice to, plaintiffs, was ineffectual to diminish the damages.

Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Action by Susan Shidlovsky and others against the Mallory Steamship Company and another. From a judgment for plaintiffs, and from a dismissal of the complaint as to one of the defendants, the other defendant (Mallory Steamship Company) appeals.

Affirmed.

Argued before GIBDERSBEEVE, P. J., and MacLEAN and SEA-BURY.JJ.

William Harman Black, for appellant.

Samuel J. Rawak and Byrne & Cutcheon (William P. Philips and Elihu Root, Jr., of counsel), for respondents.

The defendant steamship company appeals from a judgment entered upon the verdict of a jury in favor of the plaintiffs, who claimed damage because of unreasonable delay in transportation, and of right as in interest, as it was not contradicted that the goods consigned were sold as a sale to arrive. That the suit was dismissed as against the connecting carrier, the plaintiffs being seemingly not unwilling, is of no concern of the defendant appellant, which, as the initial carrier, on September 4, 1906, received a case of goods for transporta-’ tian from this to a distant state and under the provisions of the act of June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892), amendatory of Interstate Commerce Act, Act Feb. 4, 1887, c.

p. 779

104, 24 Stat. 379 (U. S. Comp. St 1901, p. 3154), was bound to issue a receipt or bill of lading therefor, and whose liability to the lawful holder thereof is expressly determined by the act. That it issued a bill of lading with exemption clause, construed by counsel into a contract, because accepted by the shipper, was and is of no avail, as that was civilly illicit under the pre-existing federal statute, providing that :

“No contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed.”

Proof there was, and sufficient, of unreasonable delay to justify the verdict in favor of the plaintiffs and of damage to the amount found by the jury, not to be diminished by or in consequence of a statement put upon the record by counsel for the railway company, even with the consent of the plaintiffs’ attorney, “that on the 26th of December,” of what year does not appear, “the goods in question were sold for $163.28 at Jacksonville, Fla., by the Seaboard Air Line Railway”; it not appearing that such sale was by or with the consent of, or upon notice to, the plaintiffs herein. The judgment must therefore be affirmed, leaving the defendant appellant to its right and remedy, if any, against the connecting carrier, to which it claims it made delivery of the case of goods in question.

Judgment affirmed, with costs. All concur.