Malone v. Metropolitan Express Co.

FREEDMAN, P. J. No one can read the testimony given by and on behalf of the plaintiff, and the cross-examination of defendant’s witness and superintendent, named Bardwell, without becoming con [1040] vinced that the defendant received plaintiff’s trunk as a common carrier under some arrangement with Montgomery, the agent of the Joy Line, by which the defendant became bound, for compensation received, to transport the said trunk from the dock of the Joy Line and deliver it for plaintiff’s account to the Mallory Line, and that the defendant is - estopped, as against the plaintiff, from denying Montgomery’s authority in the premises. There was also sufficient evidence to enable the judge below to find that the plaintiff, on accepting the receipt given to her by Montgomery, for the execution of which the latter had used a blank form issued by the defendant, did not know that said receipt embraced a proposal for a special contract, and that she took it simply as a receipt to enable her to trace her property. The case, therefore, falls within the doctrine of Springer v. Westcott, 166 N. Y. 117, 59 N. E. 693, and not within the decision of Bernstein v. Weir, 40 Misc. Rep. 636, 83 N. Y. Supp. 48, and the defendant is not exempt from liability, for the loss of the trunk, beyond the sum of $50. Moreover, no special contract limiting defendant’s liability was pleaded. The judgment should be affirmed, with costs. DAVIS, J-, concurs.