The verdict was recovered for charges advanced by the plaintiff, and for its own charges, in carrying cotton from Gainesville, in the state of Texas, to the city of New York, where it was delivered to the defendant. The cotton at the time of its delivery was not wholly laden upon either of the defendant’s steamers, but was in part placed upon the wharf of the Inman Company, under its directions, to await the departure of the steamer Egypt at a later day. While the cotton remained in that condition a tire took place, which destroyed it; and the plaintiff, insisting that the defendant had become liable to refund its advances and charges for its own carriage of the cotton, brought this action to recover that amount, with interest. The cotton was received and carried under a bill of lading entered into by the agent of what was known as the Erie & North Shore Dispatch, by which the freight for its carriage was made divisible between the land carriers and the defendant; .and in the course of its transit from Gainesville to Jersey City it passed ■over the lines of five or six different railway companies. But by the bill of lading, which was entered into under the concurring authority of each of the companies, including the defendant, it was provided that the Erie & North Shore Dispatch and its connections should not be liable for a variety of injuries sustained by the cotton, and enumerated in the bill of lading; and it was then added: “Nor for loss or damage on any article or property whatever, by tire, or other casualty, while in transit, or while in deposit, or places-of transshipment, or at depots or landings at all points of delivery. ” This constituted an agreement not only with the owner of final consignee of the cotton, but also between the different carriers, and the defendant was entitled to the benefits of this exemption between itself and the plaintiff in this controversy. The language is broad and general, including all liability of the Erie & North Shore Dispatch as well as its connections. The parties were at liberty to enter into this agreement as they did, and to exonerate each other, as between themselves, for liability from loss caused by fire and the other casualties referred to; and the contract in this manner made, including the defendant, as it did, (Maghee v. Railroad, etc., Co., 45 N. Y. 514; Manhattan Oil Co. v. Camden, etc., Transp. Co., 54 N. Y. 197,) relieved it from liability to the plaintiff for the loss of its charges and advances by the occurrence of this tire. It was not contended that any different agreement was at any time expressly •entered into concerning the liability of the defendant to pay these charges at or after the time when this cotton was received by it. Neither could such a contention have been fairly made; for by the receipt of January 22, 1883, id yen by the receiving clerk of the defendant for the cotton, it was stated to be subject to the conditions contained in the through bills of lading, and that ■continued and perpetuated the application of this stipulation for exonerating ■each of the carriers from liability for loss by fire.
To avoid this result, and to subject the defendant to a legal liability for the freight and advanced charges, evidence was given for the purpose of establishing a usage or course of dealing between the land carriers and the steamship companies, by which the company could be held liable upon an implied agreement for such charges and advances; and the witnesses whose testimony was taken upon the trial were mainly examined as to this fact; but the testimony of neither of them went so far as to indicate the existence of a usage or ■custom rendering the steam-ship company liable for the preceding freight and
Van Brunt, P. J. I concur. There was no competent evidence of any kind of a usage.