Shwartz v. Fargo (145 A.D. 574, 1911)

Rich, J.:

About three years prior to April, 1908, the defendant company issued to plaintiff’s husband, who conducts a clothing store in the city- of Poughkeepsie, a hook of blank express receipts, on the inside of the first cover of which was a printed statement limiting the defendant’s liability on shipments to he receipted for in such hook to fifty dollars, unless the just and true value was stated in the receipt and an extra charge paid based on such higher value. Each page of the hook was headed “American Express Company. Received of. 'The Property hereinafter described, to he forwarded subject to the terms and .conditions of the Company’s regular form of receipt printed on inside front cover of this hook.” This heading was followed by ruled spaces in which were to be given the date of shipment; description and contents; value; addressed to; destination, and the name of the employee receipting for the property. The hook had been in use down to April 13, 190.8, and for. some time prior to that date had been without covers, the same having been worn out and destroyed. On April 13, Í908, the plaintiff gave several of her dresses, together with lace and other materials of the value of one hundred and ninety-six dollars and fifty cents, to one Alexander, a clerk in her husband’s employ, with directions to ship them by express to her dressmakers in Flew York city for alterations. Alexander inclosed the package in a box which he addressed to “ L. & M. Rundspaden, 108 E. 71st St., New York City,” and under the proper headings in the express receipt hook wrote the date and the other information required, and delivered the package and hook to one Carroll, an employee at the defendant’s office, who receipted in said book under the proper heading for the same and received from Alexander the charges. The value of the package was not asked or given. The package was not delivered, and plaintiff commenced this action to recover its' full value. The action has been three times tried. Upon the first trial the jury disagreed; upon the second trial the court directed a verdict in favor of the plaintiff for the full amount claimed, which Was later vacated and set aside. On the last trial the court submitted to the jury the question of the value of the lost property only, directing them to return a verdict for the plaintiff for the amount' they should find. From the order denying the motion to reduce the verdict to fifty dollars, or vacate and set it aside, as well as from the judgment, the defendant appeals.

Defendant’s contention is that the plaintiff is bound by the limitation contained in the printed statement on the first page of the receipt book when it was issued to her husband, and is limited in her recovery to fifty dollars as therein provided. The plaintiff in this connection cites section 38 of the Public Service Commissions Law, providing