
    ELISE MAGNIN, and Others, Plaintiffs and Appellants, v. WILLIAM B. DINSMORE, President of The Adams Express Company, Defendant and Respondent.
    carrier and shipper, their relations, &c.
    A concealment by the shipper of the true value of the goods shipped, or his silence alone, discharges the carrier from liability for ordinary negligence (See this case in court of appeals, 62 IK. 7. 35 to 46).
    The court of appeals declined to hold, however, in this case, that such an exoneration would reach the defendant (the carrier), where his acts, or those of his servants and agents, in relation to the goods, amounted to misfeasance or abandonment of his character as carrier, but reversed the judgment and ordered a new trial on the point stated above.
    On the new trial upon the same record and evidence, the court charged the jury that if the loss occurred through gross negligence, or misfeasance in regard to, or abandonment or conversion of, the property by the carrier, he was liable. The jury found a verdict against the carrier for the full value of the property. The judgment entered was reversed on appeal by the general term of this court, because of error in the charge, and a new trial ordered. On this last trial the verdict for fifty dollars, and the judgment thereon was in accordance with the views of this court at general term, as it interpreted the decision of the court of appeals, and is now affirmed, but leave given to the defendant to appeal therefrom to the court of appeals.
    Before Curtis, Ch. J., and Speir, J.
    
      Decided January 2, 1877.
    Appeal by the plaintiff from the judgment entered upon the verdict, and from the order denying a new trial on the judge's minutes.
    The action was brought by the plaintiffs, to recovei the value of a package entrusted to the defendant’s care for transportation to Memphis, Tenn.
    The facts, and the history of the case, appear in 35 N. T. Super. Ct. (3 J.&S.) 182 ; 53 U. T. 652 ; 56 Id. 168; 38 N. T. Super. Ct. (6 J.&S.) 248 ; 62 D. T. 35; 40 If. T. Super. Ct. (8 J.&S.) 512.
    
      Charles M. Da Costa, for respondent.
    
      C. Bainbridge Smith, for appellant.
   By the Court.—Curtis, Ch. J.

When this case was last before the court of appeals (62 N. Y. 35, 46), it was held that in consequence of a concealment by the plaintiff of the true value of the goods, the defendants were relieved from liability for a loss occurring from ordinary negligence ; but the court expressly declined to hold that this exoneration extended to the defendant where his acts, or those of his servants, have amounted to misfeasance or abandonment of his character as carrier.

When the cause was next tried, in November, 1875, the court charged the jury in effect that if the loss occurred through gross negligence, or misfeasance, or by reason of abandonment, or of a conversion of the property by the defendant, that the defendant must be held liable. This was held to be error by the general term, and the judgment in plaintiff’s favor upon the verdict rendered under this instruction was reversed. Each of the two learned judges who heard the appeal concurred in this result, though not for the same reasons.

The impression still exists with me, that in view of the discovery of the rifled package in the harbor after its delivery to the defendant, and the absolute silence of the defendant in respect to it, either by way of explanation or accounting for it, this instruction to the jury was right, and that there was evidence sufficient to warrant the submission of the question to the jury. This impression is strengthened by the views expressed and the adjudications referred to in the decision of Fairfax v. New York Central & Hudson River R. R. Co., recently made by the court of appeals, and not yet reported.

The case now comes up on the appeal of the plaintiff from the judgment rendered on the verdict for $50 and interest at the special term, in pursuance of the decision of the general term granting the last new trial. Guided by this decision of the general term, it would seem that this judgment should be afiirmed; but as the plaintiff also moves that in case of such affirmance he may have leave t@ appeal to the court of appeals, there should be such leave given him, as the case appears to be one entitling him to it under the provisions of chapter 322 of Laws of 1874.

Speir, J. (concurring).

The court of appeals (62 N. Y. 35) held that silence alone, on the part of the shipper, as to the real value of the goods contained in the package, amounts to a fraud in law, which discharges the carrier from ordinary negligence. It did not hold, as I understand the opinion, that the carrier would be thus relieved from liability where his acts, or those of his servants, amount to a misfeasance or abandonment. The point was suggested, but the case did not call for a decision upon it, as there was no evidence in the record before the court of misfeasance or abandonment.

The two subsequent trials were had upon the same record which was before the court of appeals, without further or other evidence. On the first trial, the jury found a general verdict for the full value of the goods, which was set aside by the general term. On the second, the verdict was rendered in obedience to the decision of the court of appeals. There appears to be nothing left for this general term but to follow the decision of that court.

I am of the opinion, therefore, that the litigation must be deemed to be ended and finally disposed of by the court of last resort. The point seems to be doubted, and I agree with my learned associate that leave be given to the plaintiff to appeal.  