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Howard v. Handler Bros. & Winell, Inc.

Supreme Court of New York, Appellate Division

November 7, 1951

ODESSA F. HOWARD, Respondent,
v.
HANDLER BROS. & WINELL, INC., Appellant.

Page 73

APPEAL (1) from a judgment of the Supreme Court in favor of plaintiff, entered April 13, 1951, in New York County, upon a verdict for $3,477 rendered at Trial Term (GOLD, J.), and (2) from an order of said court, entered May 1, 1951, which denied a motion by defendant for a directed verdict at the close of the entire case or in the alternative for a new trial under section 549 of the Civil Practice Act.

COUNSEL

John M. Aherne of counsel (John J. Martin with him on the brief; Bigham, Englar, Jones & Houston, attorneys), for appellant.

Samuel D. Pressman for respondent.

PECK, P. J.

Defendant appeals from plaintiff's judgment for the value of a mink coat left with defendant for storage and cleaning. The coat was not returned and defendant could not account for the loss. Negligence was conceded.

Page 74

The defense rests entirely upon a document which defendant claims was a binding contract between the parties limiting defendant's liability to the sum of $10. This document, which is sufficiently impressive in appearance, resembling a stock certificate, is labeled 'Fur Storage Agreement'. It recites on its face that a mink coat was received from plaintiff at a stated value of $1, for storage and work involving charges of $20. A legend is stamped on the face of the document stating: 'Our Liability is limited to the sum of $10 unless a declared valuation is placed on the garment to be stored and an extra charge for insurance is made.'

Also on the face of the document at the top, but not in large type, is a statement: 'THIS AGREEMENT IS SUBJECT TO AND MADE A PART OF THE CONTRACT NOTED ON THE REVERSE SIDE.' On the reverse side, under the heading 'CONDITIONS', and a 'NOTICE' that 'This receipt is your storage contract. By its acceptance you will be deemed to have noted and agreed to its terms as embracing all agreements between the parties with respect to storage' are fourteen specified conditions in small type. Among the conditions are the following:

'9. At the request of the depositor and as part of the consideration for the charge set opposite each item herein listed, the undersigned hereby agrees to have effected for the benefit of the depositor insurance on each article listed in this receipt which shall, in terms usual to such insurance, cover against loss by fire and theft for the value set opposite each item, which shall represent respectively the limit of liability for loss of or damage to the same. * * *

'12. Storage and insurance charges are based upon valuation herein declared by the depositor and amount recoverable for loss of or damage to the article shall not exceed its actual value or the cost of repair or replacement with materials of like kind and quality or the depositor's valuation appearing in this receipt, whichever one of those amounts is least.'

Plaintiff testified that she regarded this document as merely a receipt, and although she saw that a valuation of $1 was written into the document, she did not read the document, regard it as a contract, or know the purported limitations of liability contained therein. On that factual issue, which was left to the jury, a finding was evidently made in plaintiff's favor.

Defendant contends that such a finding was against the evidence, and overall contends that the fur storage agreement was binding on ...


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