10.4.6.1 Klar v. H. & M. Parcel Room, Inc. | 296 N Y 1044 | May 15, 1947 | rauvinj

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10.4.6.1 Klar v. H. & M. Parcel Room, Inc.

Original Creator: Kessler, Gilmore & Kronman Current Version: rauvinj
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296 N. Y. 1044

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SIDNEY E. KLAR et al., Respondents,
v.
H. & M. PARCEL ROOM, INC., Appellant.

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Court of Appeals of New York.

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Submitted April 9, 1947; decided May 15, 1947.

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Bailments — limitation of liability for checked parcel — package containing valuable furs checked for ten-cent fee by plaintiffs' agent in defendant's parcel room — small type on parcel check limited defendant's liability for loss to $25 — testimony by plaintiffs' agent that he did not read parcel check which he thought mere receipt and that limitation of liability not called to his attention by parcel room attendant — parcel mistakenly delivered to another — judgment properly directed for full value of furs.

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Klar v. H. & M. Parcel Room, 270 App. Div. 538, affirmed. APPEAL, by permission of the Appellate Division of the Supreme Court in the first judicial department, from a judgment entered June 14, 1946, upon an order of said court which reversed, upon questions of fact and of law, a determination of the Appellate Term of the Supreme Court in the same judicial department (opinion 185 Misc. 477), entered in New York County, which modified a judgment of the Municipal Court of the City of New York, Borough of Manhattan (KATZENSTEIN, J.), in favor of plaintiffs, by reducing plaintiffs' recovery to the sum of $25 (the limit of loss appearing on the face of a parcel check) and affirming said judgment as so modified. The Appellate Division affirmed the judgment of the Municipal Court in favor of plaintiffs in the sum of. $939.50 and in so doing reversed (1) a finding of the Appellate Term that it was adequately shown by the evidence that the limitation of defendant's liability to the sum of $25 was sufficiently brought to plaintiffs' attention, and (2) a conclusion of law that defendant's liability under the contract was limited to $25. The action was brought to recover the alleged value of a paper-wrapped parcel of furs checked, for a fee of ten cents, by plaintiffs' agent with defendant at its parcel room in the Hudson Terminal at 33d [1045] Street and Broadway in the city of New York. At the time of checking plaintiffs' agent received a parcel check of which the following is a facsimile:

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H. & M. PARCEL ROOM, INC.
Broadway & 33rd St.  Hudson Tunnels
Open 7:00 A. M. - Close 1:00 A. M.
(E. S. Time Except When Another Time Is In Effect)

CONTRACT
This CONTRACT is made on the following conditions and in consideration of the loaw rate at which the services is performed. And its acceptance by the depositor. Expressly binds both parties to the CONTRACT.
Charge — 10 cents for every 24 hours or fraction thereof. For each piece covered by this contract.
Loss or damage — no claim shall be mad ein excess of $25 for loss or damage to any piece.
Uclaimed articles remaining after 30 days may be sold at public or private sale to satisfy accured charges.
PHONE PEnnsylvania 6-2467 H. & M. PARCEL ROOM, INC.
34—971

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The words were printed in black type on cream-colored cardboard, with the exception of the word "Contract" and the number "34—971" which were printed in red. Plaintiffs' agent testified that he did not read the parcel cheek when it was handed to him by the parcel room attendant; that he was not asked to read it and that he thought it was merely a receipt for the package. Two days later, when the check was presented at the parcel room, the package could not be found. It had, according to defendant, been delivered on another check. The Appellate Division stated, in substance, that parcel checking for a nominal fee is generally deemed a bailment for hire and damages for a bailee's failure to exercise ordinary care measured by the reasonable value of the property checked and that, to limit its liability, the bailee must establish a special contract of which the bailor received reasonable notice and to which he assented. In this case, the court ruled that it was a question of fact for the Trial Judge whether acceptance by the bailor of the receipt for the package constituted a contract between the parties limiting liability and that the Trial Judge's determination that there was no such agreement was amply supported by the evidence.

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[1046] Travers E, Devlin and John E. Buck for appellant.

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Horace G. Marks and George Landesman for respondents.

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Judgment affirmed, with, costs; no opinion.

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Concur: LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, THACHER, DYE and FULD, JJ.

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Annotated Case Information

February 15, 2015

"Klar v. H. & M. Parcel Room, Inc."

10.4.6.1 Klar v. H. & M. Parcel Room, Inc.

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