Opinion
October 22, 1908.
Edward V. Conwell, for the appellant.
Leopold Blumberg, for the respondents.
In September, 1907, the plaintiffs delivered to the defendant Adams Express Company a case of merchandise for shipment to S. Kleinhaus, 94 Newark avenue, Jersey City, N.J., and took a receipt therefor in which it was stipulated that the parcel was received upon the condition that defendant's liability in case of non-delivery should not exceed the sum of $50. The parcel was not delivered and the plaintiffs have recovered a judgment in the Municipal Court for $121.77 damages, its full value. There is no allegation or claim of any negligence on the part of the express company, and the recovery was had solely because of defendant's failure to deliver.
The respondents contend that section 38 of chapter 429 of the Laws of 1907 imposes an absolute liability on every common carrier, including express companies, for goods lost in transit. This cannot be so when the goods are shipped out of the State, because the act cited has no application to interstate or foreign commerce (§ 25). No negligence having been shown on the part of defendant, we think plaintiffs are bound by the terms of the agreement which limits defendant's liability to the amount it has paid into court.
The judgment of the Municipal Court must, therefore, be reversed, with costs.
I concur because there is no allegation of negligence in the complaint, it sounding on contract only. If there were, we would have before us the question whether the failure to deliver does not in and of itself make out a prima facie case of negligence.
WOODWARD, JENKS and HOOKER, JJ., concurred in both opinions.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.