(dissenting):
I dissent. The learned trial justice instructed the jury that defendant was absolutely liable to the plaintiff for the fair and reasonable value of the goods -delivered to it. The only question submitted to them was that of value. Defendant contends that the extent of its liability is the sum of fifty dollars with interest from the date of- its failure. to deliver the goods in question to the person to whom they were sent. In response to defendant’s request to direct a verdict for plaintiff in that sum, the trial justice stated that he would do so “ except for the provision of this statute.” The statute referred to is section 38 of the Public Service Commissions Law (Laws of 1907, chap. 429, § 38). In holding this statute applicable, I think error was made. So far as this statute attempts to prevent an absolute exemption from liability, or to fix the extent of such liability under certain conditions to the full value of the property not *578exceeding $150, I think that it has no application. (Baum v. Long Island R. R. Co., 58 Misc. Rep. 34; Morgan v. Woolverton, 136 App. Div. 351.) At common law a common carriel’ may contract to limit its liability. . (Barnes v. Long Island R. R. Co., 115 App. Div. 44; affd., 191 N. Y. 528; Greenwald v. Barrett, 199 id. 170.) I think that it was a ques-' tion of fact for the jury whether the plaintiff did not assent to such a contract. The court was requested to. charge and did charge, ‘ ‘ That both Max Shwartz and Cornelius Alexander were agents of plaintiff in this transaction, and the knowledge. of either, and both, must be imputed to her, and the acts of either and both bind her. ” This,' therefore, becomes the law of this case. The hook in which the receipt for the goods was written con-' tained a statement that the property was to be forwarded “ subject to the'terms and conditions of the Company’s regular form of receipt printed on inside front coyer of this book.” The testimony clearly establishes the fact that when the book was delivered to Max Shwartz, plaintiff’s husband, some time before the date in question, it liad a cover upon it,, and upon this cover were these words: “ The liability of this Company is limited .to $50, unless the just and true value is. stated in this receipt, and an extra charge is paid or agreed to be paid therefor, based upon such higher value.” There is no claim that the actual value of the goods was stated at the time delivery was made to the defendant, and the evidence is undisputed that the rate of transportation charged was less than it would have been if the full value had- been stated. At the time when the goods were delivered to defendant, the covers of the book had been. separated from the leaves thereof. It is not necessary that the paper constituting the receipt' and that containing the clause limiting liability should be actually physically attached to each other at the time that the contract of carriage is made to make them part pf'one and the same agreement. In the case of building contracts it frequently. occurs that-the contract refers to .the specifications as “ being hereunto annexed.” It.has been repeatedly held that this is sufficient to incorporate, the. terms and provisions of the specifications into the contract, making them a part thereof if they are actually existing and delivered Simultaneously therewith, so *579that the terms thereof may be said to he in the minds of the contracting parties. Although, at the time that this receipt ■was signed, the covers of the book containing the contract of limitation were detached therefrom, .there is no evidence that these were not still in the possession of Max Shwartz, plaintiff’s agent. The parties, by the form of the receipt, manifestly intended to refer to some other contract which was in Writing, and it appears that this written contract had been in the possession of Max Shwartz, if it was not at that very time, and it must be presumed that he .was entirely familiar with the contents thereof, considering the long period of time during which it had been in his possession and the frequency with which he had made use of the hook of receipts for shipping purposes. It was at least a question of fact for the jury to say whether Max Shwartz did not know of and assent' to the contract limiting liability, and under the rule of law established in this case,.if he had' such knowledge, it was imputable to the plaintiff. I think, therefore, that the judgment and order denying the motion fox a new trial should he reversed and a new trial granted, costs to abide the event.
Judgment and order affirmed, with costs.