#### Charles Richardson, Respondent, *v.*The New York Central and Hudson River Railroad Company, Appellant.

Fourth Department,

November 12, 1907.

Carrier — negligence causing injury to goods — pleading — contract requiring written notice of claim—waiver.

A complaint setting out a contract by a common carrier to transport apples, but not alleging a breach thereof, which states that the carrier failed to perform its duty or exercise care in\.transporting the apples and was guilty of negligence which injured them, etc., states ah action based on negligence,, not ón breach of contract.

In an action under such complaint a nonsuit should not be granted on the ground that the plaintiff has failed to comply with a clause of the contract of carriage requiring claims for damages to be presented in writing within thirty days, for • such stipulation does not relieve a common carrier from liability for negligence.

Moreover, a defense arising under such thirty-day clause is not available unless pleaded, nor is it available on appeal if not embodied in the motion for the nonsuit.

Appeal by the defendant, Tbe New York Central 'and Hudson River Railroad Company, from a judgment of the Supreme Court *121in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 1st day of March, 1907, pursuant, to an order entered in said clerk’s office on the 1st day.of March, 1907, affirming a judgment of the Municipal Court of the city of Buffalo, .and also from the said order upon which the judgment appealed from was entered.

*Pooley & Spratt*and *H. E. Rourke,*for the appellant.

*Edward P.*White, for the respondent.

Williams, J.:

The judgment and order should be affirmed, with costs.

The action was brought to recover damages occasioned by the freezing of a quantity of apples while being transported from Alexander, N. Y., to Shreveport, La. The facts are not here controverted. The apples were substantially spoiled while in transit, by reason of the fault and negligence of the defendant.

The questions involved on. this appeal are legal in their nature. The appellant claimed that the cause of action was on'contract and that there could be no recovery, because the plaintiff failed to comply with a condition prescribed in the contract, that the claim for damages should be presented in writing promptly, and if delayed more than thirty days after delivery, or time for delivery, there should be no liability therefor.

The plaintiff claimed the action was at common law, for negligence, and that the condition above referred to had no application to such a claim.

The Municipal Court held the action was for negligence, and that the defendant, by failing to set up in the answer a failure to comply with the thirty-day clause, had, waived it.

The Supreme Court affirmed the Municipal Court on the' ground that the defendant, in its motion for a nonsuit, omitted to state as a ground therefor the failure to comply with the thirty-day condition.

There seems to have been no evidence whether a claim in writing, was presented within thirty days or not.

It seems to us that under the complaint the action must be regarded as one for negligence and not for breach of contract. *122There is an allegation of the contract, it is true, but no allegation of breach thereof. The allegations are that having hy contract assumed the relation of common carrier, the defendant failed to perform its duty "or to exercise care in transporting the apples and was guilty of negligence which caused the injury and consequent damages. The answer, so far as these allegations were concerned, was merely a general denial. The plaintiff put in evidence the contract containing the thirty-day clause, and proved that the freezing of the apples resulted-from negligence in failing *promptly*to transport them beyond the State of ¡New York, where it became quite cold, to a warmer climate further south. The defendant moved for a nonsuit on three grounds: *First,*df a failure to prove any cause of action; *second,*a failure to -prove defendant’s negligence; *third,*a failure to prove plaintiff’s freedom from contributory negligence. The defendant, therefore, seems to have regarded the action as one for negligence. And it in no manner suggested that .it sought to defeat the plaintiff’s right to recover by reason of a failure to comply with the thirty-day condition in the contract;

It seems to be settled in *this*court that such a condition as the one in question does -not apply to and will not relieve a common carrier from responsibility for negligence. *(Security Trust Co.*v. *Wells, Fargo & Co.,*81 App. Div. 426, 431; affd. on opinion below, 178 N. Y. 620 ; *Isham*v. *Erie R. R. Co.,*112 App. Div. 612, and the cases therein cited.).

This principle of law would seem to dispose of this appeal, with-. out considering the specific grounds stated in the Municipal and Supreme Court at Special Term for their decisions. We think, however, the, Municipal Court was right in holding that in this action a failure to plead the thirty-day claim waived it. The presentation'of the claim was not a condition precedent to the right to ' recover for negligence, though it may have been if recovery had been sought for breach of contract. The condition was made as part of the *contract*and had no reference to a claim for negligence outside the contract.

And we think the Supreme Court, at Special Term, was right in holding that the defendant could not have the benefit of the ground that the thirty-day clause had not been complied with, because no such ground for a nonsuit was stated on the motion. If it had *123been, possibly the plaintiff might have given some evidence showing compliance with such condition. This principle is well established and was very properly applied in this case.

All concurred.

Judgment and order affirmed, with costs.