Hirschberg v. Dinsmore
New York Court of Common Pleas
Appeal from judgment of justice of first district court in favor of defendant. The action was for “ damages for nondelivery of goods.”
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Appeal from judgment of justice of first district court in favor of defendant. The action was for “ damages for nondelivery of goods.” The facts shown were: On November 1, 1882, at Newark, N. J., one Mercy delivered to defendant's express company a package to be shipped to plaintiffs, at New York, and received a receipt which contained the condition that in no event should the company be liable for any loss or damage, unless the claim therefor should be presented to them in writing within thirty days after the date of the receipt, in a statement, to which the receipt should be annexed, that…
1Opinion of the CourtJ. F. Daly, J.
— There was some discussion on the appeal as to whether this action was for breach of contract of the carrier or for conversion, and whether if for conversion the carrier could avail itself of the condition in the contract, providing that the claim for loss must be made within thirty days. The demand, as stated in the return, was for “ damages for non-delivery of goods.”
In Maginn agt. Dinsmore (70 N. Y., 410-17) it was said that a mere non-delivery will not constitute a conversion; and it would seem that the plaintiffs’ action is, therefore, stated on the contract. But it is of no consequence…
2Cases cited4 opinions
- Express Co. v. CaldwellSupreme Court of the United States · 1875
- Magnin v. . DinsmoreNew York Court of Appeals · 1877
- Southern Express Co. v. HunnicuttMississippi Supreme Court · 1877
- Smith v. DinsmoreNew York Court of Common Pleas · 1880