
    Fred Stern, Trading as Fred Stern Company, Respondent, v. American Railway Express Company, Appellant.
    Supreme Court, Appellate Term, First Department, November Term — Filed
    January, 1923.
    Carriers — uniform express receipt — provision that shipper must notify carrier of non-delivery within a reasonable time .cannot be waived
    The provision of a uniform express receipt in respect to a shipper giving a carrier notice after a reasonable time for the delivery of the goods has elapsed cannot be waived by the carrier.
    Where in an action for the non-delivery of goods the court correctly held that as matter of law the plaintiff had not complied with such provision, a judgment in favor of the plaintiff will be reversed and the complaint dismissed, with costs.
    Appeal by defendant from a judgment of the City Court of the city of New York, entered on verdict in favor of plaintiff.
    
      Edward V. Conwell (Charles C. Evans, of counsel), for appellant.
    
      Bondy & Schloss (Eugene L. Bondy and F. Sidney Williams, of counsel), for respondent.
   Per Curiam. .

The trial court having correctly held that as matter of law plaintiff had not complied with the provisions of defendant's uniform express receipt in respect to giving defendant notice after a reasonable time for the delivery of the goods had elapsed, as the defendant could not waive the provision of the contract requiring such notice (Georgia, Fla. & Ala. Ry. v. Blish Co., 241 U. S. 190), the complaint should have been dismissed.

We cannot find that the record presented this point for adjudication by the Court of Appeals in Cheney Piano Action Co. v. New York C. & H. R. R. R. Co., 222 N. Y. 557, which in our opinion explains the apparent inconsistency between the fedeial and the state decision.

Judgment reversed, with costs, and complaint dismissed, with costs.

All concur; present, Guy, Bijur and Delehanty, JJ.

Judgment reversed.  