
    John T. Martin, Appellant, v. The Central Railroad Company of New Jersey, Respondent.
    Second Department,
    October 18, 1907.
    Carrier—injury to baggage — pleading — answer not stating partial defense. -
    In an action against a carrier to recover for the negligent loss of the plaintiff’s baggage, it is not a partial defense to allege that the railroad ticket on ivliich the baggage was checked bore-a stipulation that free transportation -on 150 pounds of baggage only was allowed. It is also necessary to allege that the plaintiff did not pay for carrying extra baggage. Also a mere allegation that the ticket contained such a notice is no allegation of a contract of that tenor . binding upon the plaintiff.
    So too, it is not a partial defense to allege the statute of a foreign State limiting the - liability of a carrier to a certain sum unless the person offering the baggage pay by way of insurance ■ for an additional amount of responsibility, when such statute does not limit liability for negligence and there is no allegation that the defendant was not negligent.
    Appeal hy the plaintiff, John T. Martin, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of'"Westchester on the 10th day of May, 1907, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the plaintiff’s demurrer to the separate partial defenses in the defendant’s answer.
    
      Charles P. Howland [Howard E. Brown with him on the brief], for the appellant.
    
      Ethelbert I. Low [B. R. C. Low with him on the brief], for the respondent.
   Gaynor, J.:

•This complaint is for damages for the negligent loss of the plain-, tiff’s baggage by the defendant. It was received by the defendant in the city of New York and was to be carried thence to Lakewood, N. J. The answer pleads two partial defenses. The first is that the railroad ticket on which the baggage (a trunk) was received and checked bore upon it a stipulation and condition ” that free transportation was allowed on it for' 150 pounds of baggage (wearing apparel only), and limiting the company’s liability to one dollar a pound. There" is no allegation that the plaintiff did not pay for the carrying of extra baggage. This alone makes the defense insufficient. But in addition to that the mere allegation that there was such a notice or clause (call it wliat you will) bn the. ticket is . no allegation of a contract of its. tenor, and''it is only by a contract that the defendant could limit its liability.' The plaintiff may not have known of the notice, and excusably (Dorr v. N. J. Steam Nav. Co., 11 N. Y. 485; Strong v. L. I. R. R. Co., 91 App. Div. 442; Hutchins v. Penn. R. R. Co., 181 N. Y. 186). The .second is a statute of New Jersey that a railroad company may limit its liability to $100 for every 100 pounds of baggage, unless the person offering the baggage pay, “ by way of insurance ”, for any additional amount of responsibility to be assumed, by notice to such person, or by a general notice posted up as prescribed ; and' that such notice was given, and also posted. But this does not by its terms purport to be, and is not, a limitation in the case of negligence, and' there is-no allegation that the baggage was not lost'through negligence (Bermel v. N. Y., N. H. & H. R. R. Co., 62 App. Div. 389; Wheeler v. Oceanic Steam Nav. Co., 125 N. Y. 155). The statute not applying to cases of negligence,, the' defense-, to be good, must state a case to. which it does apply. This deficiency. of the second also'app.lies to the first .partial defense. ...

The'interlocutory judgment should be reversed, and the demurrer sustained, with.leave to plead over. '

Jenks, Hooker, Rich and Miller, JJ., concurred.

Interlocutory judgment reversed and demurrer sustained, With costs, with leave to plead over upon payment of costs.  