On April 24, 1918, the plaintiff shipped or caused to be shipped from Syracuse, N. Y., a certain “ casting ” by the American Express Company to plaintiff at McConnellsville in this county, a distance of some fifty-four miles. It is said that the shipment should have reached McConnellsville the following morning; but it did not in fact arrive there for upwards of two months. This action was brought to recover damages on account of the foregoing facts and has resulted in a verdict for the plaintiff in the sum of forty-nine dollars, from which defendant appeals.
The summons was originally issued against “American Express Company. ’ ’ It was served as per return upon Addison Gibbons, “ agent for defendant at the town of Annsville, N. Y.” We may, I think, assume that this service is sufficient under section 2881 of the Code. Upon the return of the summons presumably, the plaintiff asked to amend “ all the proceeding in the action to conform to the fact so as to read William E. Gifford, plaintiff and James C. Fargo as treasurer of the American Express Company defendant.” It seems this motion was granted. I do not think the justice of the peace had any power to amend his process. The powers given to courts by section 723 of the Code clearly apply to courts of record, and the justice had.no other powers in that connection except such as are given to him by section 2944 of the Code which relates to pleadings only. However, • the following appears in the return: “ This motion is made:pur
The complaint herein alleges: ‘ ‘ That the American Express Company is a joint-stock association of more than seven persons, of which the defendant James C. Fargo is treasurer, existing pursuant to the laws of the State of New York, * * * and at all times hereinafter named was engaged in business in the State of New York and elsewhere as a common carrier of goods and merchandise.” The answer contains a general denial, but does not affirmatively attack the above alie
Again it is said that: “A joint-stock association is hybrid in its character. It is regarded for some purposes as a corporation and for other purposes as a partnership.” Matter of Jones, 28 Misc. Rep. 358.
Plaintiff cites article 8 of section 3 of the New York State Constitution which provides that: “ The term corporations as used in this article shall be construed to include all associations and joint-stock companies.” This, however, is probably not controlling, as it will be observed that it refers only to the term “ as used in this article,” meaning of course the Constitution, and not including the Code. Defendant cites the case of McCabe v. Goodfellow, 133 N. Y. 89, as authority for the proposition that the plaintiff must allege and prove that all the members of the association were liable either jointly or severally to pay his claim. This dictum is pursuant to and in conformity with the language of section 1919 of the Code. Not only was
It is not a matter beyond doubt as to whether a joint-stock association gets its authority to sue or be sued from section 1919 of the Code. Formerly such an association was given authority to sue and be sued. Laws of 1849, chap. 238. That act has been repealed and various amendatory acts have been passed, some or all of which have been repealed. Nothing similar seems to be found in the Joint-stock Association Law, as it now exists. Even if we must have recourse to section 1919 for authority to sue a joint-stock association, I think we may assume that it is the intention of the law to include such a concern as is this defendant within the provisions of section 1776 of the Code. It is organized about like a corporation, has all the practical characteristics of a corporation, and all of the reasons which make section 1776 of the Code necessary or desirable apply with, equal force to this defend
The value of the casting in question upon the day of shipment was proven at fourteen dollars, and the plaintiff has been permitted to recover in addition upon his claim for special damages because of the delay or failure to deliver. It is claimed by the defendant that upon the authority of Chapman v. Fargo, 223 N. Y. 32, the plaintiff’s proofs were not sufficient to entitle him to recover. I deem it unnecessary to pass specifically upon that point, because I consider that the lack of proof of damage is such that no damages under the special agreement were established. Whatever the facts with reference to the proofs may have been, the return does not show any thing warranting special damages. The proof does show that a casting worth fourteen dollars was delivered to the defendant for shipment on April 24, 1918; that it should have arrived at its destination the following day; that it did not in fact arrive there until ‘' sometime in July,” when plaintiff refused to accept it, and testified that it had then no value. This evidence is uncontradicted, and I think clearly entitles the verdict to stand for that amount. The suggestion that the “ casting ” had some value as junk has no particular force, as there is nothing in the case to show what the casting was made of, or if it had any value at all, it was more than nominal. The recovery of the plaintiff must therefore be reduced to fourteen dollars.
Defendant raises another point upon which he contends that the recovery of the plaintiff cannot stand at any amount. It seems that the shipping receipt issued by the defendant to plaintiff, and which constituted the contract between them, contained this provision, “ Except where the loss, damage or injury
We come to the question of costs which are governed by paragraph 5 of section 3066. The judgment has been affirmed only in part. I feel that the reduction is due mostly to technical errors, and possibly the failure of a lay magistrate to properly transcribe the evidence, and that therefore the respondent should have whatever costs of this appeal are permitted in such a case. The judgment will therefore be reduced from forty-nine dollars to fourteen dollars, and as so reduced, affirmed, with ten dollars costs and disbursements to the respondent.
Order affirmed, with ten dollars costs and disbursements.