(121 App. Div. 552.)

#### MARTIN v. CENTRAL R. CO. OF NEW JERSEY.

(Supreme Court, Appellate Division, Second Department.

October 18, 1907.)

1. Carbiebs—Loss of Baggage—Actions—Defenses.

An answer, in an action against a carrier for loss of a passenger’s baggage, which alleges that the ticket on which the baggage was checked stipulated that free transportation was allowed for 150 pounds of baggage, and limited the carrier’s liability to §1 a pound, is bad for failing to allege that the passenger did not pay for the extra baggage.

*2272. Same—Limiting Liability—Contbacts.

A ticket limiting the carrier’s liability for loss of baggage is ineffective, where the passenger does not know of the stipulation and is excusable for not knowing.

[Bd. Note.—Bor cases in point, see Cent. Dig. vol. 9, Carriers, § 1548.]

3. Same—Statutes.

A statute authorizing a carrier to limit its liability for loss of baggage, unless the passenger by way of insurance pays therefor, does not apply to cases of negligence resulting in the loss of a passenger’s baggage.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, § 1544.]

Appeal from Special Term, Westchester County.

Action by John T. Martin against the Central Railroad Company of New Jersey. From an interlocutory judgment' overruling a demurrer to the partial defenses pleaded, plaintiff appeals. Reversed, and demurrer sustained, with leave to plead over.

Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ.

Charles P. Howland (Howard E. Brown, on the brief), for appellant.

Ethelbert I. Low (B. R. C. Low, on the brief), for respondent.

GAYNOR, J.

This complaint is for damages for the negligent loss of the plaintiff’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 defences. 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 $1 a pound. There is no allegation that the plaintiff did not pay for the carrying of extra baggage. This alone makes the defence insufficient. But in addition to that the mere allegation that there was such a notice or clause (call it what you will) on 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. Steam Nav. Co., 11 N. Y. 485, 62 Am. Dec. 125; Strong v. L. I. R. Co., 91 App. Div. 442, 8 N. Y. Supp. 911; Hutchins v. Penn. R. Co., 181 N. Y. 186, 73 N. E. 972, 106 Am. St. Rep. 537. 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., etc., R. Co., 62 App. Div. 389, 70 N. Y. Supp. 804; Wheeler v. Nav. Co., 125 N. Y. 155, 26 N. E. 248, 21 Am. St. Rep. 729. The statute not applying to cases of negligence, the defence, to *228be good, must state a case to which it does apply. This deficiency of the second also applies to the first partial defence.

The interlocutory judgment should be reversed, and the demurrer sustained, with costs, with leave to plead over upon payment of costs. All concur.