The plaintiff appeals from a judgment in his favor for fifty dollars damages and costs in an action brought against the *577defendant as a common carrier for the negligent loss of plaintiff’s property committed to its care for transportation. The complaint contains three causes of action; the first for the loss of property of the value of fifty-five dollars and sixty-eight cents consigned to Edward Yaas on February 3, 1909; the second for property of the value of sixty-eight • dollars and eighty-nine cents consigned to J. Mintz & Son on February 5 (the proof shows it was on January 29), 1909, and the third for property of the value of one hundred and thirty-seven dollars and eighty-six cents consigned to B. Cardenson & Co. on March 9, 1909. The defendant denied each of the causes of action, and for a separate defense to each alleged that the property was received under a special contract in writing limiting its liability to fifty dollars. It was admitted that the property was received for transportation and that it was not delivered to the consignees. The plaintiff proved the contents of each package and that the value.of each exceeded fifty dollars. •. At the close of plaintiff’s testimony the following stipulation was made: “Stipulated: between the attorneys for the respective parties: That, if judgment is rendered for the plaintiff in action No. 1, that judgment shall go for plaintiff in action No. 2; and that if judgment is rendered for the plaintiff in action No. 1 for $50 in those cases where the shipment is in excess of $50, that .judgment shall also go in the second action for $50; in those cases for less than $50 judgment shall go for the plaintiff for the full amount.” The defendant offered no proof other than the réceipts which limited its liability to fifty dollars in the case of each-shipment. While the terms “Action No. 1,” “Action No. 2 ” are used in the stipulation there was but one action in which three causes of action were alleged, and while defendant does not seem to have sufficient interest to present. its views upon the question involved, it is clear,. I think, that the stipulation referred to the three causes of action. A cause of action was made out on the first cause of action, and it follows that the plaintiff was entitled to fifty dollars on each of the three causes of action. Upon the proof, if the plaintiff was entitled to recover upon one of the. causes of action he was equally "entitled to recover upon the other two, the *578proof being the same as to each. Each receipt constituted a special contract as to the transportation of the-particular property named, and was a limitation as to liability for the property receipted for and no other.
Plaintiff contends that he is entitled to recover for the .full value of the'-property, notwithstanding the special contracts, upon the ground that defendant’s failure to explain the non-delivery of the packages was negligence which avoided the special contracts. The receipts contain the following: “Nor shall they be liable for loss or damage to any goods, wares, merchandise or packages caused by the wrongful, willful, negligent or other acts of the agents or servants of White’s Express Company, in an amount exceeding Fifty ($50) Dollars unless the just and true value is ■ stated in writing and an additional amount paid under special agreement made in writing at the office of the company.”. It is not shown that there was any such statement' or agreement, and I think the defendant’s liability was limited under this provision, even as. a common carrier, as against the negligence of its employees.
The judgment of the Municipal Court must be reversed and a new trial ordered, costs to abide the event.
Jenks, P. J., Thomas, Carr and Woodward, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.