Opinion
November, 1904.
Raphael Link, for appellant.
Guthrie, Cravath Henderson (Richard Reid Rogers and Bridgham Curtis, of counsel), for respondent.
The defendant express company received from plaintiff at Philadelphia on March 19, 1904, a box for transportation to New York, for which a receipt or bill of lading was given shipper, the material part thereof reading as follows: "Received from 1721 Memorial Avenue Box marked Heyman 108 East 11th Street New York." This box was not delivered, nor attempted to be delivered at the address mentioned in the receipt, and was consumed in a fire which destroyed defendant's premises in 59 Broadway on March twenty-sixth, or seven days after the date of shipment. Witnesses were called upon the trial on behalf of defendant who testified to the attempted delivery of a box to Heyman at 118 East Eleventh street, New York, but that in consequence of failure to find consignee at that address, the box was stored in defendant's warehouse, the claim of the defense being that notwithstanding the fact that the bill of lading read 108 East Eleventh street, the actual marking on the box was 118 East Eleventh street. The date when these witnesses claimed to have seen the box was March twenty-third, or four days later than its shipment, during all of which time it was in defendant's custody. This evidence might tend to establish that the address on the box and that recited in the receipt were different at the time of shipment, but it was far from conclusive upon that point.
In Magnin v. Dinsmore, 56 N.Y. 168, the learned court says: "It is no longer open to question in this State that in the absence of fraud or imposition the rights of carrier and shipper are controlled by a contract in writing delivered to the shipper by the carrier at the time of the receipt of the property for transportation." It was error to permit proof against objection of defendant's custom. Custom or usage, general or local, may in some instances be material, but evidence of the custom or usage of a party to an action is certainly incompetent to contradict the express or implied terms of a contract. Hopper v. Sage, 112 N.Y. 530.
No proper foundation for the admission of the "Cabinet Card" testified to by defendants "On Hand Clerk" was laid, and the exception taken to the overruling of plaintiff's objection thereto of itself establishes reversible error. Linden v. Thieriot, 96 A.D. 256.
Judgment reversed, and new trial ordered, with costs to appellant to abide the event.
FREEDMAN, P.J., and BISCHOFF, J., concur.
Judgment reversed, and new trial ordered, with costs to appellant to abide event.