Opinion
December, 1914.
Murray, Prentice Howland, for plaintiff-appellant.
Alex S. Lyman, for defendant-appellant.
Plaintiff sues for damages caused by a long delay in the recovery of a trunk filled with her clothing which defendant misdelivered. Plaintiff claimed to be entitled to three items of damages, twenty-six dollars and seven cents, expense of attempting to trace the trunk; eighty-five dollars and seven cents, clothing purchased to replace part of that lost; and forty dollars and forty-three cents, expenses of the trip upon which such purchases were made. The clothing, the delivery of which was delayed, seems to have been of the value of about nine hundred dollars. The learned judge below awarded plaintiff eighty-five dollars and seven cents.
The defendant claims that the measure of damages is the value of the use of the clothing during the period of delay. This is quite correct. Under the circumstances of the case, the difference between the cost of plaintiff's intermediate purchases and their value to her at the time of the delivery of the missing trunk, is the reasonable measure of this damage. See Cardozo v. Bloomingdale, 79 Misc. 605. It is, if anything, more favorable to the defendant than the precise rule to which it appeals. I also regard as a proper element of the cost of the articles purchased, her expenses necessarily incurred in making the purchases. She is also entitled to recover the cost of her reasonable efforts to trace the lost property.
There is nothing in Brown v. Weir, 95 A.D. 78, or Katz v. Cleveland, C., C. St. L. Ry. Co., 46 Misc. 259, which is relevant to the present controversy; nor does the decision of Palmer v. Louisville N.R.R. Co., 123 N.Y.S. 47, hold anything contrary to this view.
Defendant's claim, that the limitation to $150 damage contained in its published rates applies, is answered by the case of Robinson v. New York Central H.R.R.R. Co., 145 A.D. 391, in view of the fact that no inquiry was made by defendant's agent as to the value of the contents of the trunk at the time it was delivered for transportation.
SEABURY and COHALAN, JJ., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.