Hirshberg v. Dinsmore

J. F. Daly, J. [After stating the facts as above.]— There was some-discussion on the appeal as to whether this [430] action was for breach of contract of the carrier or for conversion ; and whether, if for conversion, the carrier could avail himself of the condition in the contract providing that the claim for loss must be made within thirty days. The demand as stated in the return was for “ damages for nondelivery of goods." In Magnin v. Dinsmore (70 N. T. 410, 417), it was said that a mere non-delivery will not constitute a conversion; and it would seem that the plaintiff’s action is therefore stated on the contract. But it is of no consequence what the form of action is, since in Smith v. Dinsmore (9 Daly 188) we held that in an action for conversion the thirty day clause in the shipping receipt (which clause was identical with the one now before us) was available to the carrier; that the presentation of claim for loss within the time specified was a condition precedent to recovery, and unless complied with the action against the carrier could not be sustained. That case was decided upon another point, but the views .expressed in the opinion on the point directly involved in the present case are in conformity with the authorities (Express Co. v. Caldwell, 21 Wall. 264; Weir v. Adams Exp. Co., 55 Phila. 355; Southern Exp. Co. v. Humnicutt, 54 Miss. 566; Lewis v. Great Western R. Co., 5 Hurlst & N. 876). The judgment should be affirmed, with costs. Laeebmobe and Van Hoesen, JJ., concurred. Judgment affirmed, with costs.