This appeal is from an order of the Appellate Term, First Department, dated November 17, .1972, which, by a divided court, reversed an order of the Civil Court, New York County, and granted summary judgment in favor of the plaintiff; the Civil Court had denied summary judgment.
The action was brought by plaintiff to recover for damaged goods. In its indorsed complaint filed in the Civil Court, the plaintiff averred: 1 ‘ An action to recover the sum of $1,126.84 for damages for breach of a contract of carriage on a shipment made on or about December 12, 1967 consigned by the plaintiff at Statesville, N. C. to itself at Chicago, Ill., via the facilities of the defendant acting as a common carrier.” While the goods were in transit, a bridge over the Ohio River collapsed, and the plaintiff’s shipment was damaged. The defendant carrier, in its answer,. pleaded a general denial, and, as an affirmative defense: “ Act of God ”. But the defendant never served a bill of particulars as to such defense, and was precluded; and in an opposing affidavit, the defendant stated he ‘ ‘ fell into the error of alleging as a defense that the disaster was an act of God ”.
On this sparse state of the pleadings and the papers it is clear that plaintiff established an unrefuted prima facie case by showing delivery of the shipment in good condition, arrival in damaged condition, and the amount of damages, and that the defendant carrier has not met its burden of showing that it was free from negligence and that the damage was due to one of the expected causes, such as an act of God, relieving the carrier of *510liability. See, Motor Carrier Act of 1935, as amended (U. S. Code, tit. 49, §§ 301-327), section 219 (U. S. Code, tit. 49, § 319) of which incorporates by reference the Carmack Amendment of 1906, subdivision (11) of section 20 of the Interstate Commerce Act (U. S. Code, tit. 49, § 20, subd. [11]) which was construed in Missouri Pacific R.R. Co. v. Elmore & Stahl (377 U. S. 134, 137) wherein the Supreme Court noted this statute “codifies the common-law rule also, Commodity Credit Corp. v. Norton (167 F. 2d 161). And this policy having been rendered manifest by controlling authority, the Appellate Term was correct in following it. Indeed, the affidavit of the defendant’s attorney who did not even pretend to have any knowledge of the facts, was completely vacuous of facts, was of no probative value, and can be disregarded. (Cohen v. Pannia, 7 A D 2d 886; Di Sabato v. Soffes, 9 A D 2d 297, 301; Leefe v. Public Serv. Mut. Ins. Co., 14 A D 2d 951; Georgia-Pacific Corp. v. Fort Pit Supply, 34 A D 2d 742.)
As for the preoccupation of the dissenting opinion herein with that portion of section 1(b) of the uniform bill of lading, which deals with losses caused by “ delay ”, I would note that the complaint in the Civil Court was not for “ delay ” in transit, but for damages to the goods shipped.
The order of the Appellate Term, First Department, entered November 20,1972 should be affirmed, with costs.