The material facts are stated in the opinion of Mr. Justice Olarke, in which I am unable to concur. It is well settled that a shipper of passenger • and a common carrier may make a binding contract, with respect to- the value of the ■ property, whether- shipped as freight or baggage, which will limit the. amoúnt of the recovery, and this may bé done either by an express provision fixing tlie actual value, or by a valuation specified by the carrier in the bill of.lading or ticket,.as the valuation agreed upon in the' event that a higher *25valuation is not declared and a higher rate paid. (Hart v. Pennsylvania R. R. Co., 112 U. S. 331; Tewes v. North German Lloyd S. S. Co., 186 N. Y. 151; Zimmer v. N. Y. C. & H. R. R. R. Co., 137 id. 460 ; Steers v. Liverpool, N. Y. & P. Steamship Co., 57 id. 1; but see Holmes v. North German Lloyd S. S. Co., 184 id. 280.)
In the case at bar, however, the agreement printed by the carrier on the ticket is not a valuation agreement, but is a clear attempt on its part to limit its liability, and - in such case the rule is that, although the condition be binding upon the shipper or passenger it will be construed as a limitation on the carrier’s liability as insurer and not upon its liability as a bailee for hire and, therefore, will not be construed as relieving the carrier from liability for its own-negligence, which is alleged here and admitted, unless it is expressly so provided or such intention is so clearly expressed that it cannot be misunderstood by a shipper or passenger of ordinary intelligence. (Condict v. Grand Trunk R. Co., 54 N. Y. 500; Rathbone v. N. Y. C. & H. R. R. R. Co., 140 id. 48 ; Bermel v. N. Y., N. H. & H. R. R. Co., 62 App. Div. 389 ; affd, on opinion of App. Div., 172 N. Y. 639; Mynard v. Syracuse, etc., R. R. Co., 71 id. 180; Nicholas v. N. Y. C. & H. R. R. R. Co., 89 id. 370; Holsapple v. Rome, Watertown, etc., R. R. Co., 86 id. 275; Kenney v. N. Y. C. & H. R. R. R. Co., 125 id. 422. See, also, Holmes v. North German Lloyd S. S. Co., supra.) These uthorities require, I think, that the contract pleaded by the defendant be not construed as relieving it from liability for its own negligence.
I am of opinion, therefore, that the interlocutory judgment should be reversed and the demurrer sustained,' with costs to appellant to abide the event.
Judgment affirmed, with costs, with leave to plaintiff to withdraw demurrer on payment of costs. ’