
    Clara Cappel, Appellant, v. Levi C. Weir, as President, etc., Respondent.
    (Supreme Court, Appellate Term,
    November, 1904.)
    Action against carrier for value of freight destroyed by fire — Whether place of delivery is determined by address on package or that stated in bill of lading — Custom not admissible to vary terms of contract.
    Freight shipped by plaintiff was destroyed by fire on the defendant carrier’s premises. Defendant gave testimony as to attempted delivery and that the consignee’s address in the bill of lading and on the package differed.
    Held, that the rights of the carrier and shipper “are controlled by a contract in writing delivered to the shipper by the carrier at the time of the receipt of the property ”.
    The admission of evidence of custom' to contradict the express or implied terms of a contract is error.
    
      Appeal by plaintiff from a judgment of the Municipal Court of the city of Hew York, fourth district, borough of Manhattan, in favor of the defendant in an action for breach of contract.
    Raphael. Link, for appellant.
    Guthrie, Cravath & Henderson (Richard Reid Rogers and Bridgham Curtis, of counsel), for respondent.
   Fitzgerald, J.

The defendant express company received from plaintiff at Philadelphia on March 19, 1904, a box for transportatipn to New York, for which a receipt or bill of lading was given shipper, the material part thereof reading as follows: “Received from 1721 Memorial Avenue Box marked Heyman 108 East 11th Street New York.” This hox was not delivered, nor attempted to be delivered at the address mentioned in the receipt, and was consumed in a fire which destroyed defendant’s premises in 59 Broadway on March twenty-sixth, or seven days after the date of shipment. Witnesses were called upon the trial on behalf of defendant who testified to the attempted delivery of a box to Heyman at 118 East Eleventh street, New York, but that in consequence of failure to find consignee at that address, the hox was stored in defendant’s warehouse, the claim of the defense being that notwithstanding the fact that the bill of lading read 108 East Eleventh street, the actual marking on the box was 118 East Eleventh street. The date when these witnesses' claimed to have seen the box was March twenty-third, or four days later than its shipment, during all of which time it was in defendant’s custody. This evidence might tend to establish that the address on the box and that recited in the receipt were different at the time of shipment, but it was far from conclusive upon that point.

In Magnin v. Dinsmore, 56 N. Y. 168, the learned court says: “ It is no longer open to question in this State that in the absence of fraud or imposition the rights of carrier and shipper are controlled by a contract in writing delivered to the shipper by the carrier at the time of the receipt of the property for transportation.” It was error to permit proof against objection of defendant’s custom. Custom or usage, general or local, may in some instances be material, but evidence of the custom or usage of a party to an action is certainly incompetent to contradict the express or implied terms of a contract. Hopper v. Sage, 112 N. Y. 530.

No proper foundation for the admission of the “ Cabinet Card ” testified to by defendants On Hand Clerk ” was laid, and the exception.taken to the overruling of plaintiff’s objection thereto of itself establishes reversible error. Linden v. Thieriot, 96 App. Div. 256.

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

Freedman, P. J., and Bischoff, J., concur.

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