We think that the plaintiffs should have had judgment for the market value of the shipment at New York for failure of delivery here. The limitation of liability in clause 11 of the bill of lading does not give the shipper a “ choice of rates ” under the ruling in Straus & Co. v. Canadian Pac. R. (254 N. Y. 407). Declaring a larger value than the limited sum would give no more right to damage for market value than negligence in shipment would bring in any event. Hence there is no consideration for the promise to take less under the limitation.
The judgment should be reversed, with costs, and judgment directed for plaintiffs for the market value as stipulated, with costs.
Finch, P. J., Merrell, Martin and Sherman, JJ., concur.
Judgment reversed, with costs, and judgment directed for plaintiffs for the market value as stipulated, with costs.