
    Susman Shidlovsky et al., Respondents, v. Mallory Steamship Company, Appellant, and Seaboard Air Line Railway Company, Respondent.
    (Supreme Court, Appellate Term,
    July, 1908.)
    Carriers — Carriage of goods—Limitation of liability — Power to limit liabilty — Effect of Interstate Commerce Act.
    Values — Price paid at auction or public or judicial sale —When not controlling.
    The acceptance of a receipt, containing provisions to exempt the carrier from liability, by a shipper of merchandise, from a carrier engaged in interstate commerce, does not effect such exemption since the amendment of 1906 to the Interstate Commerce Act; nor will the damages found by the jury be diminished because of a statement in the record that the goods were afterward sold in a distant State by another carrier for a less sum, without proof that such sale was with the consent of, or upon notice to, the plaintiffs.
    Appeal by the defendant Mallory Steamship Company from a judgment in favor of the plaintiffs and from a dismissal of the complaint as to the defendant the Seaboard Air Line Bailway Company, rendered in the Municipal Court of the city of Lew York, fifth district, borough of Manhattan.
    William Harmon Black, for appellant.
    Samuel J. Rawak, for respondents.
   MacLean, J.

The defendant steamship company appeals from a judgment, entered upon the verdict of a jury in favor of the plaintiffs who claimed damage because of unreasonable delay in transportation, and of right as in interest, as it was not contradicted that the goods consigned were sold as a sale to arrive. That the suit was dismissed as against the connecting carrier, the plaintiffs being seemingly not unwilling, is of no concern to the defendant-appellant, which, as the initial carrier, on September 4, 1906, received a case of goods for transportation from this to a distant State, and, under the provisions of the act of June 29, 1906, amendatory of the Interstate Commerce Act, was bound to issue a receipt or bill of lading therefor, and whose liability to the lawful holder thereof is expressly determined by the act. That it issued a bill of lading with exemption clause construed by counsel into a contract because accepted by the shipper was and is of no avail, as that was civilly illicit under the pre-existing Federal statute providing that “ no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed.” Proof there was and .sufficient of unreasonable delay to justify the verdict in favor of the plaintiffs and of damage to the amount found by the jury, not to be diminished by or in consequence of a statement put upon the record by counsel for the railway company, even with the consent of the plaintiffs’ attorney, “ that, on the 26th of December,” of what year does not appear, “ the goods in question were sold for $163.28, at Jacksonville, Florida, by the Seaboard Air Line Railway,” it not appearing that such sale was by or with the consent of, or upon notice to, the plaintiffs herein. The judgment must, therefore, be affirmed, leaving the defendant-appellant to its right and remedy, if any, against the connecting carrier to which it claims it made delivery of the case of goods in question.

Gildersleeve and Seabury, JJ., concur.

Judgment affirmed, with costs.  