#### George D. Fish, Plaintiff, *v.*The Delaware, Lackawanna & Western Railroad Company, Defendant.

(Supreme Court, Saratoga Special Term,

March, 1913.)

Carriers — exemption from negligence — release of, from damages for personal injuries.

Where, on delivery of certain property to a carrier in the state of Michigan for transportation to a place within the state of New York, plaintiff signed a contract releasing the carrier from damages for personal injuries, the contract, conceded to be invalid where made, is a defense to an action for personal injuries occasioned in this state by the negligence of defendant, a connecting carrier.

Demurrer to separate defenses contained in answer.

Leary & Fullerton, for plaintiff.

Rockwood & McKelvey, for defendant.

Van Kirk, J.

This is a demurrer to the second and third separate defenses in the answer on the ground that each is insufficient in law upon the face thereof.

The action is brought to recover damages for injuries occasioned by defendant’s negligence while plaintiff was in a car on defendant’s road, at Elmira, ¡N". Y. The second separate defense alleges that plaintiff delivered a quantity of furniture and horses to the Grand Trunk Railway Company at Jackson, Mich.,' on or about ¡November 3, 1910, for transportation to Ballston Spa, ¡N". Y.; and, on the delivery of said property, the plaintiff signed a contract, which pro-*637Tided for such transportation over a joint route, in which contract was the following: “And it is further agreed by said shipper that, in consideration of the premises and of the carriage of a person or persons in charge of said stock upon a freight train of said carrier or its connecting carriers without charge, other than the sum paid or to be paid for the transportation of the live stock in charge of which he is, that the said shipper shall and will indemnify and save harmless said carrier and every connecting carrier, from all claims, liabilities and demands of every kind, nature and description by reason of personal injury sustained by said person or persons so in charge of said stock, whether the same be caused by the negligence of said carrier or any connecting carrier, or any of its of their employees, or otherwise. And George D. Fish does hereby acknowledge that he had the option of shipping the above described live stock at a higher rate of freight according to the official tariffs, classifications and rules of the said carrier and connecting carriers and thereby receiving the security of the liability of the said carrier and connecting railroad and transportation companies as common carriers of the said live stock upon their respective roads and lines, but has voluntarily decided to ship same under this contract at the reduced rate of freight above first mentioned.”

The third separate defense alleges that, at the time, of the injuries, the plaintiff was riding free .of charge in the capacity of caretaker in charge of said horses, the plaintiff having -declared his desire to travel with, said horses as caretaker and having signed this .agreement:

“ Release for man or men in charge: In. consideration of the carriage of the undersigned upon a freight train of the carrier or carriers named in the within contract without charge, other than the sum paid for the carriage upon said freight train of- the live stock mentioned in said contract, of which live- stock he. is in charge, the undersigned, does hereby voluntarily assume .all risk of accidents or damage to his - person or property and does hereby release and discharge the said carrier, or carriers from every and all claims, liabilities and demands of every kind, nature and *638description for or on account of any personal injury or damage of any kind sustained by the undersigned so in charge of said stock, whether the same be caused by the negligence of the said carrier or carriers or any of its or their employees or otherwise.

> “ Geo. D. Fish.”

The question raised by the demurrer is not as to the construction or meaning of the contract. These are plain. The question is whether or not a contract releasing a carrier from damages for personal injuries, as set forth in the two defenses, is valid. It is conceded that, if the law of Michigan controls, the contract is invalid; if the law of Few York, it is valid. The law of the state of Few York governs.

The general rule as to the interpretation of contracts is that they aré to be construed and interpreted according to the laws of the state in which they are made, unless, from their terms, it is disclosed that they were made by the parties with a view to the laws of some other state, as when it is to be performed in another state, and then in conformity to the presumed intent of the parties the law of the place of performance furnishes the rule of interpretation. Dike v. Erie R. Co., 45 N. Y. 116. But the state will not enforce a contract made in another state, which is in conflict with its public policy declared by statute or by its courts. The state is not bound to recognize the rule or public policy of •another state, which state has an unrestricted right to determine and fix its own rules, as it may deem best for the public good, whether the legislation limits or broadens the responsibility of a carrier. Martin v. Pittsburg & Lake Erie R. R. Co., 203 U. S. 284, 294; Penn. R. R. Co. v. Hughes, 191 id. 477; Chicago, Milwaukee & St. Paul R. Co. v. Solan, 169 id. 133; The Kensington, 183 id. 263. So a contract, otherwise valid, will be recognized here, if not in conflict with our rules of public policy, even though invalid or void because against public policy in the state where made. There is no case in this state holding in such circumstances that such contract would be invalid in this state. A person who has charge of freight and who, by eon-*639tract with the carrier, was being carried without additional compensation, is in the same position as a mail clerk carried with mail matter without extra charge. Martin v. Pittsburg & Lake Erie R. R. Co., *supra.*And the person being carried has not the right to recover for injuries received, against the law of the state in which suit is brought. Id. In a negligence action in this state brought to recover for injuries received in Pennsylvania, a statute of Pennsylvania limiting liability is not available to defendant (Dike v. Erie R. Co., supra) ; nor are the decisions of another state on questions of commercial law binding upon the courts in this state, where such decisions are in conflict with the principles of the common law, even though the contract was made in this state and to be performed in the other state where the loss occurred. Faulkner v. Hart, 82 N. Y. 413. Where the plaintiff is a passenger and a contract is made in another state than that in which the injuries were received, his right of action, based on the negligence of the carrier, rests upon the laws of the state where the negligence took place. Northern Pacific R. Co. v. Adams, 192 U. S. 444; Williams v. Central Railroad Co. of New Jersey, 93 App. Div. 582; affd., 183 N. Y. 518. Whether a waiver of liability for injuries due to ordinary negligence of a carrier, where such waiver is in writing signed by the injured person, is valid so as to constitute a defense, depends upon the laws of the state where the accident happened, not where the contract was delivered. See Smith v. Atchison, Topeka & Santa Fe R. Co., 194 Fed. Rep. 79; Weir v. Rountree, 173 id. 776, where the written agreements were very similar to those in the case at bar.

A general principle is that *“*Where the contract is to be performed partly in one country and partly in another country, each portion is to be interpreted according to the laws of the country where it is to be performed, a rule which is fully sustained by authority.” Faulkner v. Hart, 82 N. Y. 420.

When the parties made this contract it "was not contemplated that it should be performed within the state of Michigan; it was contemplated that it should be performed *640in the several states from Michigan to Ballston Spa, H. Y. It has been uniformly held that a contract exempting a carrier from liability from negligence, valid at the place of its execution and delivery, will not avail as a defense when the injury occurs in a state by whose laws such contracts are declared to be void as against public policy. This rule having been adopted, that the law of the place of the injury would impose a liability upon the carrier, a contrary rule will not be adopted when such law would protect the carrier by enforcing the contract. An attempt to distinguish a case in which this rule would impose a liability upon the carrier from one in which it would relieve the carrier was spoken of by the United States Supreme Court in the Martin case, 203, U. S. 294, as follows: “ The contention, that because, in the cases referred to, the operation of the state laws, which were sustained, was to augment the liability of a carrier, therefore the rulings are inapposite here, where the consequence of the application of the state statute may be to lessen the carrier’s liability, rests upon a distinction without a difference.” Smith v. A. T. & S. F. R., supra, 81.

The case of Valk v. Erie R. Co., 130 App. Div. 446, is not in conflict with this holding. That was a case where a contract for the shipment of goods from Illinois to Hew York was made in the former state, and it was held that the construction of the contract was governed hy the laws of Illinois, although the goods were destroyed by fire in Hew York state. By the laws of Illinois an exemption from liability for loss by fire is not binding, whether the delivery is made within or without the state; unless accepted in writing hy the shipper. In this case no such acceptance was had; and the court says that the question to be decided is simply, What was the contract? And it holds that no contract was made for exemption from liability for loss by fire. In the case at bar the contract was made; it would not be enforced in the state of Michigan, because contrary to the public policy of that state. In this state it is á valid contract; it is not contrary to our public policy. T am therefore of the opinion that the contract' is tied to the tort and *641is available for a defense in an action tried in this state to recover for ordinary negligence which occurred in this state. The demurrer is, therefore, overruled.

At the same time a motion is made requiring the plaintiff to reply to the two affirmative defenses in case the demurrers are overruled. I think the plaintiff should be required to reply. An order may, therefore, be prepared overruling the demurrer, with costs, and plaintiff must make reply to the said two defenses within twenty days.

Ordered accordingly.