Hyperlawhypertext legal database J. H. Lichtenstein & Co. v. Fargo 121 N.Y.S. 327

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J. H. Lichtenstein & Co. v. Fargo

121 N.Y.S. 327 Court N.Y. App. Term Decision date 1910-02-24 English

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p. 327
(66 Misc. Rep. 149.)
J. H. LICHTENSTEIN & CO. v. FARGO.
(Supreme Court, Appellate Term.
February 24, 1910.)

Headnote

Carriers (§ 135[1] )—Carriage of Goods—Refusal by Consignee—Delay in Notifying Consignor—Damages.
If a carrier has no notice of danger of depreciation in the value of millinery goods by reason of a change of style, it is error to allow for the same as an element of damages in a suit for delay in mailing consignor notice of their return, where a consignee refused to receive them.
[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 135.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by J. H. Lichtenstein & Co. against James C. Fargo as president of án unincorporated association. From a judgment for plaintiff, defendant appeals.
Reversed, and new trial ordered, unless plaintiffs stipulate to reduce the judgment.
Argued beforé SEABURY, GUY, and WHITNEY, JJ.
Charles C. Paulding (Wm. Mann, of counsel), for appellant.
Baggott & Ryall, for respondents.

Defendant is president of an unincorporated association operating a fast freight line. Plaintiffs shipped two cases, marked “millinery goods," valued by them at $106.77, to Winona, Minn., on December 10, 1906. The consignee refused to receive them. By some unexplained delay, notice of their return was not mailed to plaintiff until March 19, 1907. The actual contents of the cases were mainly feminine straw hats, not trimmed. No physical injury to the goods was shown, but one of the plaintiffs testified that the delay caused a loss of 90 per cent, in value, owing to change in the prevailing style. The other put the loss at 50 to 75 per cent. The court

p. 328
fixed it at about 87 per cent. Defendant had no notice of such danger of depreciation, and this alone is fatal error. Wolfe v. Weir, 61 Misc. Rep. 57 , 112 N. Y. Supp. 1078 .

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event, unless the plaintiffs stipulate to reduce the judgment to the sum of $10 and costs in the c'ourt below, in which event the judgment, as so modified, is affirmed, without costs to either party on this appeal.