
    Zulkind Shapiro and Bertha Shapiro (a Copartnership Composing the Firm of Z. & B. Shapiro), Respondents, v. Levi C. Weir, as President of the Adams Express Company, Appellant.
    Second Department,
    October 22, 1908.
    Carrier — goods lost in transit — statute imposing absolute liability — not applicable to interstate commerce — complaint — failure to allege negligence.
    Section 38 of chapter 429 of the Laws of 1907, imposing absolute liability upon common carriers for goods lost in transit, has no application to interstate or foreign commerce.
    Hence, when goods shipped out of the State are lost and no negligence upon the part of the carrier is shown, the shipper is bound by a contract limiting the liability of the carrier to a certain sum in case of non-delivery.
    The plaintiff cannot recover on the theory that non-delivery is prima facie proof of negligence, when the complaint is on contract and makes no charge of negligence.
    Appeal by the defendant, Levi C. Weir, as president, etc., from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiffs, entered in the office of the clerk of said court on the 6th day of March, 1908.
    
      Edward V. Conwell, for the appellant.
    
      Leopold Blumberg, for the respondents.
   Rich, J.:

In September, 1907, the plaintiffs delivered to the defendant Adams Express Company a case of merchandise for shipment to S. Kleinhaus, 94 Newark avenue, Jersey City, N. J., and took a receipt therefor in which it was stipulated that the parcel was received upon the condition that defendant’s- liability in case of non-delivery should not exceed the sum of $50.- The parcel was not delivered and the plaintiffs have recovered a judgment in the Municipal Court for $121.77 damages, its full value. There is no allegation or claim of any negligence on the part of the express company, and the recovery was had solely because of defendant’s failure to deliver.

The respondents contend that section 38 of chapter 429 of the Laws of 1907 imposes an absolute liability on every common carrier, including express companies, for goods lost in transit. This cannot be so when the goods are shipped out of the State, because «the act cited has no application to interstate or foreign commerce (§ 25). No negligence having been shown on the part of defendant, we think plaintiffs are bound by the terms of the agreement which limits defendant’s liability to the amount it has paid into court.

The judgment of the Municipal Court must, therefore, be reversed, with costs.

Gaynor, J. (concurring in the result):

• I concur because there is no allegation of negligence in the complaint, it sounding on contract only. If there were, we would have before us the question whether the failure to deliver does not ■ in and of itself make out a prima facie case of negligence.

Woodward, Jenks and Hooker, JJ., concurred in both opinions.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  