
    Louis W. Noel, Appellant, v. Westcott Express Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    May, 1916.)
    Carriers—contracts—evidence—Public Service Commissions Law, § 38.
    Where the holder of a ticket over a railroad from Tuxedo to New York city went to the baggage department of the station at Tuxedo and, upon asking the expressman to have his bag transferred to his house in New York city, was told, that the transfer check would cost forty cents, which plaintiff paid and received a receipt therefor, the expressman taking possession of the bag which the railway company delivered to defendant, an express company, in New York city for delivery, the express company in handling the bag under the contract made at Tuxedo was engaged in intrastate commerce.
    Where the special delivery check was designed, as stated by the railroad rules and regulations, u for the checking of baggage from any line station to the residence, hotels, steamboat piers or railroad stations ” and does so by direction of a passenger that his bag be transported at the end of the journey to his home, the railroad company receiving four cents of the total charge of forty cents for the service, the railroad company acted as agent for defendant, the express company.
    While a common carrier in the absence of special contract for a through shipment is not liable beyond the terminus of its own route, the railroad company was not liable to the passenger as upon a through shipment for loss of his bag while in the hands of the express company, as the special delivery check did not evidence a special contract.
    A local baggage carrier by rendering services connected with interstate passenger traffic in the transportation of baggage from a railroad terminal to residences, etc., in a city is not a common carrier or express company subject to the provisions of the act to regulate commerce. Carmack Amendment, TJ. S. Stat. at Large, §§ 1905-1907, chap. 3591.
    The limitation in section 38 of the Public Service Commissions Law that the value of baggage carried in excess of $150 shall be stated upon delivery to the carrier which may make a reasonable charge for the assumption of such liability is not available to an express company which as agent of a railroad company upon receiving a passenger’s bag fails to ask him to state its value.
    Appeal by plaintiff from so much of a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, as limits his recovery to the sum of $100 with interest and costs, and grants him judgment for said sum only.
    Augustin Derby, and Lyle E. Mahan, for appellant.
    Carter, Ledyard & Milburn (Milton C. Lightner, of counsel), for respondent.
   Guy, J.

On the morning* of November 16, 1914, the plaintiff, having in his possession a railroad ticket over the Erie railroad from Tuxedo to New York, went to the baggage department of the station at Tuxedo and asked the expressman to have his bag transferred to his house in New York city. The expressman told plaintiff that the transfer check would cost forty cents, and plaintiff paid that amount and got a receipt for it, the expressman taking possession of the bag. Plaintiff was not asked the value of the property, and he did not state it. He went to New York that morning over the Erie, but never got his bag* or its contents; and the action is brought to recover the value of the property, which was admittedly received by the defendant from the railroad company. A shipment from Tuxedo to New York over the Erie railroad passes through New Jersey.

The theory of the action is.that the Erie Railroad Company, as the agent of defendant, arranged at Tuxedo for the transportation of plaintiff’s bag to New York; that as such agent it collected on behalf of the defendant the transportation charges; and that defendant, a New York common carrier, by reason of its breach of contract and its failure to perform its duty as a common carrier, is liable for the value of the property.

Defendant, claiming the benefit of certain rules and regulations, or so-called tariff, of the railroad company filed, pursuant to act of congress, with the interstate commerce commission, made an offer of judgment for $100 and costs; the court, after a trial of the issues, gave judgment for plaintiff for $106 damages with costs in addition; and it is stipulated by the parties that the decision of the court limited plaintiff’s damages to $100 under section 16b of the Erie Railroad tariff, providing* that the value of property shipped be agreed to be not in excess of $100, unless greater value is declared and an extra charge paid; and that such decision included in the damages granted $6 for one year’s interest.

As the holder of a ticket over the Erie railroad from Tuxedo to New York, the plaintiff was entitled to have his bag carried by the railroad company to its terminal in New York city free of charge. Performance of the contract made by the plaintiff with that company at Tuxedo for delivery of his bag at his house could not begin until the bag arrived at the New York terminal. It is evident, therefore, that in handling the bag under the contract made at Tuxedo the defendant was engaged in intrastate, not interstate, commerce. In this respect the case is similar to State of New York ex rel. Pennsylvania R. R. Co. v. Knight, 192 U. S. 21. There the railroad disputed the validity of a license tax imposed by the city of New York upon the cab service established by the railroad solely to transfer passengers who were coming from or going on interstate trips, from the railroad terminal to points in the city and vice versa, the railroad asserting that the cabs were engaged in interstate commerce and, therefore, not subject to domestic taxation of the kind imposed. The court, in overruling that contention and sustaining the validity of the tax, said (p. 27): “ The cab service is rendered wholly within the state and has no contractual or necessary relation to interstate transportation. It is either preliminary or subsequent thereto. It is independently contracted for, and not necessarily connected therewith. But when service is wholly within a state it is presumably subject to state control. The burden is on him who asserts that, though actually within, it is legally outside the state; and unless the interstate character is established, locality determines the question of jurisdiction.”

Under section 2 of the railroad’s rules and regulations it is provided that baggage checks ‘ will only be issued to destination of ticket, or to points where stopovers are allowed, and only via route of ticket; ’ ’ and by section 30b it is provided that agents ‘ ‘ must not under any circumstances take baggage beyond the destination of transportation presented.” But as to “ special delivery baggage ” section 33 is as follows : “ Special delivery check [such as was given to plaintiff] is designed for the checking of baggage from any line station to residence, hotels, steamboat piers or railroad stations in the cities shown in the following schedule. . Special delivery charges should be prepaid.” And then follows Westcott Express Company, New York City,” with rates according to zones in the borough of Manhattan. The plaintiff’s bag was-delivered to the defendant by the railroad at the railroad’s terminal in New York, and of the charge of forty cents the defendant’s share was thirty-six cents. These facts authorize the conclusion that in the shipment in question the railroad acted as the agent of defendant.

The railroad company as principal would not have been liable to the plaintiff as upon a through shipment, because in the absence of a special contract for a through shipment a common carrier is not liable for a shipment beyond the terminus of its own route, and the baggage check did not evidence a special contract. Soviero v. Westcott Express Co., 47 Misc. Rep. 596. The respondent claims, however, that by the Carmack amendment (U. S. Stat. at “Large, §§ 1905-1907, chap. 3591) enacted subsequently to the decision of the Soviero case, the railroad company and the defendant were connecting carriers, and that, therefore, the railroad company became liable to plaintiff as upon a through shipment. But that position is not tenable, for it has been decided that a local baggage carrier like the defendant, although performing services connected with interstate passenger traffic, is not a common carrier or express company subject to the provisions of the act to regulate commerce. Matter of Frank Parmalee Company, 12 Int. Com. Rep. 40; Wylie v. Northern Pacific R. Co., 11 id. 145.

Further, the railroad company failed to prove that its schedules were posted at Tuxedo, and such posting appears to be a requirement of the federal act in default of which the statutory limitation is not operative. In any event the limitation of liability in the Erie tariff was not intended for defendant’s benefit and did not apply to defendant, because the concurrence of the defendant under section 6 of the act was not shown, and its name is not in the list of participating carriers. There was no warrant, therefore, for giving the defendant the benefit of the interstate commerce limitation in the Erie tariff; and the law of New York governs the disposition of the controversy.

Section 38 of the Public Service Commissions Law provides that common carriers, including transportation companies, are liable for the full value of property carried as baggage, “ but the. value in'excess of one hundred and fifty dollars shall be stated upon delivery to the carrier, and a written receipt stating the value shall be issued by the carrier, who may make a reasonable charge for the assumption of such liability in excess of one hundred and fifty dollars. ’ ’

In Robinson v. N. Y. C. & H. R.R. R. Co., 145 App. Div. 391; affd., 203 N. Y. 627, it was held that the limitation is not available to carriers unless they inquire of passengers the value of their baggage, and that a failure to make such inquiry is a waiver of the benefits of the provision. See Meister v. Woolverton, 140 App. Div. 926. As the uncontradicted evidence in this case is that the plaintiff was not asked to state the value, the limitation is not operative.

Judgment modified by increasing the amount to $250 and appropriate costs in the court below, together with $25 costs of this appeal, and, as so modified, affirmed.

Cohalan and Whitaker, JJ., concur.

Judgment modified, and, as so modified, affirmed, with costs.  