Opinion
June 12, 1908.
Francis Raymond Stark [ George H. Fearons and Rush Taggart with him on the brief], for the appellant.
Arthur L. Fullman, for the respondent.
The question presented by this appeal has been decided in Halsted v. Postal Telegraph-Cable Co. ( 120 App. Div. 433). A telegram was sent to plaintiff from Brooklyn by Provost Brothers Company, his brokers, on August 5, 1903, requiring an additional margin of $2,000, and giving notice that if the same was not sent immediately the stock purchased for him would be sold to protect the senders. It was an unrepeated message written upon the general blank of the company, containing the same stipulations and conditions that were contained in the telegram considered in the Halsted case, and was written at the office of the senders by their acting cashier. When delivered to the defendant for transmission it was addressed to "H.J. Monsees, Unger Cliff Hotel, Mt. Kisco, New York." It reached Mount Kisco addressed to "H.J. Monse, Unger Cliff Hotel," and was not delivered to plaintiff until August seventh, when he went to the office of the defendant and called for the telegram, which was delivered to him. His stock was sold by his brokers on August sixth, resulting in an alleged loss to plaintiff of his entire margins amounting to $4,300, $450 of which he has recovered in this action. The negligence alleged in the complaint is the improper transmission and the delay in delivering the message.
The principle decided in Halsted v. Postal Telegraph-Cable Co. ( supra) is applicable to non-delivery, or delay in delivery, as well as to an error in language in transmission. It has been followed by this court in Bates v. Weir ( 121 App. Div. 275), and by the Appellate Term in Addoms v. Weir ( 56 Misc. Rep. 487), and is in accord with the views of the Court of Appeals as expressed in Kiley v. Western Union Telegraph Co. ( 109 N.Y. 231).
The judgment and order must be reversed and a new trial granted, costs to abide the event.
WOODWARD, JENKS and HOOKER, JJ., concurred; MILLER, J., concurred in result, being of the opinion that the contract would not relieve from liability for non-delivery or delay in delivery, unless such non-delivery or delay were caused by an error in transmission.
Judgment and order reversed and new trial granted, costs to abide the event.