
    Joseph Sanesi et al., Copartners under the Firm Name of Sanesi & Maron Company, Respondents, v. Western Union Telegraph Company, Appellant.
    
      Telegraph companies —■ action for damages for failure to deliver message — limitation of liability by contract —- unanimous affirmance — Court of Appeals precluded from consideration of questions argued.
    
    
      Sanesi v. Western Union Telegraph Co., 190 App. Div. 893, affirmed.
    (Argued April 28, 1921;
    decided May 13, 1921.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 15, 1919, unanimously affirming a judgment of the Chautauqua County Court which affirmed a judgment in favor of plaintiffs entered upon a decision of the Municipal Court of Dunkirk on trial without a jury. The action was to recover damages arising from failure by defendant to send and deliver a telegram. The answer set up as separate defenses that the message involved was accepted by the defendant subject to the terms and conditions of a contract in writing, one of which terms was that in the case of an unrepeated message (and this was an unrepeated message) the defendant’s liability should not exceed the amount paid for sending the message and that by virtue of the' same contract the defendant’s liability could not in any event exceed fifty dollars, as that was the sum at which the message was valued by the plaintiffs, for rate-making purposes, at the time they filed it.
    
      Francis Raymond Stark, Rush Taggart, Joseph L. Egan, John H. Walrath and William S. Stearns for appellant.
    
      Glenn W. Woodin for respondents.
   Judgment affirmed, with costs, on ground that the constitutional rule of unanimous affirmance precludes the court from considering questions argued by appellant; no opinion.

Concur: His cock, Ch. J., Chase, Hogan, Cardozo, McLaughlin, Crane and Andrews, JJ.  