
    Mary J. Barter, Respondent, v. William M. Barrett, as President of the Adams Express Company, an Association Composed of More Than Seven Persons, Appellant.
    (Supreme Court, Appellate Term, First Department,
    February, 1917.)
    Carriers — common — actions — contracts — judgments — appeal.
    Where a clause in a common carrier’s receipt given for a trunk, containing wearing apparel, requiring the shipper to commence an action upon any claim growing out of the contract within one year from the date thereof, was neither complied with nor waived, a judgment in favor of the shipper for the loss of the wearing apparel will be reversed and the complaint dismissed, but with leave to appeal to the Appellate Division.
    Guy, J., dissents.
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, in favor of the plaintiff for the sum of $175 and costs, after a trial by a judge without a jury.
    Edward V. Conwell and Edgar R. Kraetzer, for appellant.
    D. W. Steele, Jr. for respondent.
   Per Curiam.

This action was brought to recover the value of certain articles of wearing apparel that were in plaintiff’s trunk when she gave oyer the custody of it to the defendant express company for transportation from Far Rockaway to her home in Manhattan, and that were not in the trunk when it was delivered to her by the defendant several days later. The defendant relies, for its defense, wholly upon the special contract clause in the receipt for the trunk given by its employees, concededly not complied with or waived, requiring the shipper to commence suit upon any claim growing out of the transportation contract within one year from the date thereof.

This case is controlled by the decision of this court in Lichterman v. Barrett, 95 Misc. Rep. 594, but as two of the justices who have heard the present appeal are not in accord with the conclusion reached in that case, we have determined to reverse this judgment on the authority of that previous decision, with thirty dollars costs to appellant, and complaint dismissed, with costs, but with leave to appeal to the Appellate Division.

Bijtjr and Mullah, JJ., concur; Guy, J., dissents.

Judgment reversed, with costs to appellant.  