
    James Lackaye, Respondent, v. Pennsylvania Railroad Company, Appellant.
    •(Supreme Court, Appellate Term, First Department,
    May, 1916.)
    Carriers — action against — liability limited — trial.
    Where on the trial of an action brought by an actor against a railroad company to recover for a trunk and contents lost during an interstate journey it appears that by arrangement between defendant and the company of which plaintiff was a member, in consideration of a reduced rate, the liability of defendant for the baggage of the members of the company was limited to $100, plaintiff cannot recover in excess of such amount.
    Appeal by the defendant from a judgment in favor of the plaintiff for the sum of $644.91, entered in the office of the clerk of the Municipal Court of the city of New York, borough of Manhattan, third district, after a trial before the court without a jury.
    Burlingham, Montgomery & Beecher (George R. Allen, of counsel), for appellant.
    O’Brien, Malevinsky & Driscoll (Alfred G. Steiner, of counsel), for respondent. ■
   Cohalan, J.

Plaintiff, an actor, sued to recover the sum of $645 for the loss of a trunk and its contents. The trunk was delivered to the defendant in Jersey City, and was checked for Philadelphia, Pa. The arrangements for the transfer were made by the A. H. Woods Production Company. This company employed the plaintiff, and in this transaction it was acting as his agent. The action having been brought to recover on a contract, the act of the plaintiff’s representative' has been ratified on the part of the plaintiff by this suit. Green v. Clarke, 12 N. Y. 343.

The transfer of the baggage was interstate; hence it was subject to the provisions of the Interstate Commerce Act, particularly of the Carmack amendment thereto.

It appears that the A. H. Woods Production Company paid for twenty-five fares from New York to Philadelphia, at the rate of $1.80 a person. This arrangement included the fare of the plaintiff and the transfer of his baggage. It was a reduced rate, and it was subject to the defendant’s rules and regulations with respect to rates and tariffs. The tariff provided that the liability of the defendant for the baggage of an employee of a theatrical company should be limited to the sum of $100. If a greater liability had been' desired, that option rested with the plaintiff or his agent. He did not avail himself of this privilege, and it follows that the defendant was at liberty to invoke the limited liability in the sum of $100. Boston & Maine R. Co. v. Hooker, 233 U. S. 97; Barstow v. N. Y., N. H. & H. R. Co., 158 App. Div. 665.

The defendant in- the court below offered to allow judgment to be taken against it in the sum of $100. The court, however, allowed a recovery in the sum of $645.

The judgment is reversed, and a new trial ordered, with $30 costs to appellant to abide the event, unless plaintiff stipulates to reduce the judgment to $100, with interest thereon from January 23, 1915, together with costs in the court below, and in that event the judgment, as so modified, is affirmed, with costs of this appeal to the appellant.

Guy and Bijur, JJ., concur.

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