
    Elmer E. Cooley, Respondent, v. The Pennsylvania Railroad Co., Appellant.
    (Supreme Court, Appellate Term,
    March, 1903.)
    Municipal Court of the city of New York — Payment of costs and fees when unnecessary on filing notice of appeal — Waiver — Damages for a passenger’s delay.
    It is not a valid objection to the hearing of an appeal in an action begun, in the Municipal Court of the city of New York, before, but in which issue was joined after, Sept. 1, 1902, when the Municipal Court Act went into effect, that the appellant did not upon filing his notice of appeal with the clerk pay him his fee for a return and the costs of the action, and this because the Municipal Court Act (K 1902, ch. 580) governs and does not require such payment in such case.
    Service by the respondent of amendments to the case on appeal is a waiver of any defects in the appellant’s procedure:
    A lawyer, delayed by a railroad wreck and who has not informed the carrier of special circumstances which make it necessary for him to reach his destination on schedule time, can recover of the carrier merely compensatory damages — the value of his time, during the period of delay, based upon the average of what he had earned for at least a year preceding the time of the occurrence.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, tenth district, borough of Manhattan, rendered in favor of the plaintiff upon a trial had before the court without a jury.
    Robinson, Biddle & Ward (A. Leo Everett, of counsel), for appellant.
    Francis B. Elgas, for respondent.
   Giegerich, J.

This action was brought to recover damages claimed by the "reason of delay in transporting the plaintiff as a passenger on defendant’s railroad.

On the argument of the appeal respondent’s counsel stated that the costs and fees had not been deposited with the clerk upon the filing of a notice of appeal, as required by section 3047 of the Code of Civil Procedure, and, therefore, that,the appeal should be dismissed.

We think this objection was not well taken. The summons had been issued prior to September 1, 1902, issue was not joined until the 2d day of September, 1902, and the case was not tried until the twenty-sixth day of that month.

It is true that section 361 of the Municipal Court Act (Laws of 1902, chap. 580), has a saving clause providing that actions commenced before the 1st of September, 1902, may be prosecuted in the same manner as before, yet it has been expressly held in this court (Kochman v. Hefter, N. Y. L. J., Jan. 7, 1903), that in actions removed from the Municipal Court to the City Court and tried after that date, costs should be allowed as if the action had been commenced in the court to which it was removed, as provided in section 361 of the act before referred to, although, under the provision of the Code, no costs were provided for in such cases. If the Municipal Court Act is effective in imposing costs in such cases where none had been provided for, it surely ought to be effective to relieve from costs where that had been provided for, especially where when the law went into effect there were no costs of any kind as against either party.

In Langbein’s Municipal Court Practice (5th ed. 404), it is said that “ the provision in section 3047 as to the payment of the costs of the action, included in the judgment, has been omitted. In section 317 it is assumed that it is not omitted, for that section provides that within thirty days after the service of the notice of appeal, £ and the payment of the costs and fees as prescribed in this act ’ the clerk of the court must make the return, but there is no provision prescribed in this act ’ for the payment of the £ cost ’ or costs. Section 347, subdivision 3, entitled Pees payable to clerks,’ provides that Por a return on appeal from a judgment or order two dollars shall be paid to the clerk as court fees ’ and that is the only provision to be found prescribed in this act ’ to comply with section 317.”

v Moreover, the respondent served amendments to the case on appeal, which could only be done under the provisions of the Municipal Court Act, for it was not provided for by the Code of Civil Procedure (Cothren v. Chaffee, 39 Misc. Rep. 339), and by this act we think he waived the objections and ratified the procedure of the appellant.

We, therefore, think the appeal is regularly before us for adjudication.

The facts in the case are practically undisputed, and, as far as material, are as follows: On or about the 10th day of December, 1899, the plaintiff in the city of Mew York, purchased a ticket to Philadelphia and return. On his return he left Philadelphia on the seven thirty-threC o’clock a. m. train, December eleventh, which was dne in Mew York at nine thirty o’clock a. m., as appeared by the time tables published by the defendant. At the túne when he started there had been a wreck upon the line of defendant’s road, of which the plaintiff was not informed. Owing to the wreck the train did not reach Mew York until half-past three o’clock in the afternoon. In the meanwhile, a case in which he was attorney for the plaintiff had been called in the Oity Court of the city of Mew York at ten o’clock in the morning, and, owing to his failure to appear, the case had been dismissed, although he had telegraphed to his own office and to the judge before whom the case was to be tried, that he could not be there on time.

The plaintiff, having his return ticket, did not have to pur* chase one, and before starting from Philadelphia he did not disclose to any servant or officer of the defendant his profession or the nature of his business on that day. He testified that he told the conductor when on the train at Trenton, that he had a court engagement, but at that time it was impossible for him, to be transported to New York in time to be present at the call of the City Court calendar.

The fact that there was a delay of several hours called upon the defendant to show, if he could, that such delay was the result of inevitable accident, or that it was excusable. This it did not do, and, therefore, the question for us to determine is what measure of damages should have been applied to the case.

It is well established that in order to hold the carrier for damages beyond those which accrue upon his negligent delay naturally and in the order of things, he must be informed of the special circumstances which make promptness on his part important to the passenger and which may occasion exceptional damages as the result of his delay. In other words, that both parties to the contract must be fully informed as to the circumstances and the reasons why it is important to the passenger to arrive at on or about the schedule time. DeLeon v. McKernan, 25 Misc. Rep. 182; Hadley v. Baxendale, 9 Exch. 341; North American T. & T. Co. v. Morrison, 178 U. S. 262; Booth v. Spuyten Duyvil Rolling Mill Co., 60 N. Y. 487; Hutchinson on Carriers, § 773, p, 920.

This rule would exclude the twenty dollars paid by the plaintiff to open the default, even if the plaintiff were liable for the same, but an attorney is not liable for costs in such a ease, and if he chose to pay them it was a voluntary act on his part.

In our opinion the only damages which can be recovered in this case are compensatory merely and such as would naturally and in the order of things flow from the delay, and these, under the facts presented in this case, would be the value of his time for the period covered by the delay, which is to be measured, not by the largest sums he has earned for such time, nor by the smallest, but by an average of what he has earned for at least a year immediately preceding the time of the occurrence. Walker v. Erie R. R. Co., 63 Barb. 260.

Now, as to such value, the only evidence in the case is the following testimony given by the plaintiff: Q. What were your services reasonably worth for the time? A. Depending on the kind of case it is, from $50 to $100 a day. Q. Do you consider $75 a reasonable compensation a day? A. I do.”

This clearly does not have reference to the plaintiff’s average earnings for any given period of time, but is a mere estimate of what he might have charged under certain circumstances depending on the kind of case ” he might have had, and is not a sufficient basis for determining the value of such time.

We, therefore, think the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Freedman, P. J., concurs; Gildersleeve, J., taking no part.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  