#### William S. Barnes et al., Plaintiffs, *v.*The Long Island Railroad Company, Defendant.

(Supreme Court, Queens Trial Term,

May, 1905.)

Carrier — Limited liability — Contract void in State where made.

A contract limiting a carrier’s common-law liability, made in a State where such limitation is prohibited by the Constitution, ia .yoid and cannot be enforced in this State.

. Plaintiff in Kentucky, delivered twenty-nine yearling colts and fillies to an express company under a contract, for through shipment to a certain' place in this State. A clause in the contract limiting the carrier’s common-law liability made it void under the Constitution of Kentucky. Defendant as a connecting carrier received the animals from the express company in this State and contracted with it to carry them to their destination.

Held, that a later contract of shipment, which limited defendant’s liability to one hundred dollars an animal, made with plaintiff’s employee in charge of the animals but who had no authority to make such contract, was without consideration and void.

A verdict for $30,000, in an action against the connecting carrier for damages to the animals while in transit, held not excessive.

Action for damages to 29 yearling colts and fillies in transit.

Verdict for plaintiff for $30,000. Motion on the minutes for a new trial; also motion to reduce the verdict to the amount of the limited liability specified in the contract of shipment, vtiiieh question was reserved during the trial.

*319William Lindsay for plaintiffs.

William C. Beecher for defendant.

Gayuok, J.:

The plaintiffs delivered 29 yearling colts and fillies to the Adams Express Company at Lexington, Kentucky, under a contract with the said company for through shipment by it to Sheepshead Bay, N. Y. The through freight was paid in advance to the said company.

. 1. The written contract of shipment limited the carrier’s liability to $75 for each animal. But that clause was void in Kentucky, the constitution of that state forbidding the making of contracts by common carriers for the limitation of their common law liability (Sec. 196). And being void where made the contract is void here (Grand v. Livingston, 4 App. Div. 115; 158 N. Y. 688).*

2. At Long Island City, the terminal of the defendant’s railroad, a new contract of shipment was executed by its agent and the person in charge of the horses on the way for the plaintiffs, which limited the carrier’s liability to $100 • an animal.

But before the making of this contract the defendant had already, i. e., about two hours before, received the animals as a connecting carrier from the Adams Express Company, and made a written agreement with that company to carry them to their destination, as I find to be the fact. Its later contract with the plaintiffs’ employee was therefore without consideration and void. It contracted for nothing new or additional, beyond what it was already bound to, and no consideration was paid to it. I also find that the plaintiffs’ employee had no authority to make the contract.

All questions both of fact and law in respect of the contracts of shipment were left to the court on the trial and reserved for decision until after verdict by consent.

After a careful consideration, I am satisfied that the verdict is not excessive.

Motions denied.

*

See Cappel v. Weir, 46 Misc. Rep. 441.