
    James Riley, App’lt, v. The Western Union Telegraph Company, Resp’t.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed May 7, 1894.)
    
    Contract—Telegraph company—Limitation.
    A condition, of which the sender of a message has notice, limiting the liability of a telegraph company for delay in delivering the message to the sum paid for its transmission, constitutes a contract between the parties; and in the absence of gross negligence or wilful misconduct on the part of the company, there can be no recovery against it beyond such amount.
    Appeal from order of the general term, city court, reversing judgment on verdict, and directing a new trial. Action for damages from delay in transmitting and delivering a telegraphic message. The opinion gives other essential facts.
    
      L. J. Morrison, for app’lt; Rush Taggart and David D. Duncan, for resp’t.
    
      
       Affirming 56 St. Rep., 528.
    
   Pryor, J.

If it be obvious on the record that the order granting a new trial was for error of law only, our jurisdiction to entertain the appeal is unquestionable. McSteere v. Little, 8 Daly, 167.

On the back of the blank form which the plaintiff filled up with his message, was a stipulation that, for delay in delivering it, the defendant should be liable only to the amount paid for the message. Of this1 condition of the defendant’s responsibility, the plaintiff had notice when he dispatched the message. His contract, therefore, was, that in the absence of gross negligence or wilful misconduct on the part of the company, it’s liability should be only for the sum paid for the message. Pearsall v. W. U. Tel. Co., 124 N. Y. 256; 35 St. Rep. 307; Kiley v. W. U. Tel. Co., 109 N. Y. 231; 14 St. Rep. 816. For that sum the trial court was requested, but refused, to direct a verdict; and was requested, but refused, to charge that such sum was the limit of the defendant’s liability. These refusals to direct and to charge, constitute the specific error for which a new trial was ordered by the general term of the court below. The sum paid for the message was twenty-five cents; the amount of the verdict was two hundred and thirty-four dollars and fifty cents. Manifestly, we have but to inquire whether the case exhibits evidence sufficient in law to authorize a finding that the delay in the delivery of. the message was due to gross negligence or wilful misconduct. 16 there was such evidence the ruling of the trial court was correct; if there was not such evidence the ruling was error. Bearing in mind the now settled and familiar rule, that a scintilla of evidence is not enough to uphold a verdict, we concur with the general term below, that the proof was altogether inadequate to> warrant the inference that the delay in the transmission of the mes.sage was the effect of gross negligence' or wilful misconduct.1 The ruling therefore, of the learned trial judge, in refusing the direction and the charge, was error, was error in law, and was error of palpable prejudice to the defendant.

The order must be affirmed, and judgment absolute rendered against the plaintiff on his stipulation, with costs.

Daly, 0. J. and Bischoff, J., concur.  