Opinion
February, 1917.
Edward V. Conwell and Edgar R. Kraetzer, for appellant.
D.W. Steele, Jr. for respondent.
This action was brought to recover the value of certain articles of wearing apparel that were in plaintiff's trunk when she gave over the custody of it to the defendant express company for transportation from Far Rockaway to her home in Manhattan, and that were not in the trunk when it was delivered to her by the defendant several days later. The defendant relies, for its defense, wholly upon the special contract clause in the receipt for the trunk given by its employees, concededly not complied with or waived, requiring the shipper to commence suit upon any claim growing out of the transportation contract within one year from the date thereof.
This case is controlled by the decision of this court in Lichterman v. Barrett, 95 Misc. 594, but as two of the justices who have heard the present appeal are not in accord with the conclusion reached in that case, we have determined to reverse this judgment on the authority of that previous decision, with thirty dollars costs to appellant, and complaint dismissed, with costs, but with leave to appeal to the Appellate Division.
BIJUR and MULLAN, JJ., concur; GUY, J., dissents.
Judgment reversed, with costs to appellant.