Abend v. Haberman , 116 N.Y.S.2d 11 ( 1952 )

Eder, J. (dissenting).

I vote to affirm the judgment appealed from. I do not see that there is any limitation of liability upon which the defendant can successfully rely. There were two receipts given by defendant to the plaintiff. Plaintiff’s Exhibit 1, though it is dated June 1,1948 was, in fact, not issued that day but several days after the coat had already been delivered to the defendant. The defendant so testified:

“ Q. As a matter of fact, Mr. Haberman, you did not issue that receipt until after you picked up the coat? A. Yes.”

At the time the coat was delivered by plaintiff to the defendant, a receipt was given by defendant to plaintiff.

“ Plaintiff’s Counsel: I wish to offer in evidence at this time the receipt issued at the time the coat was picked up, referred to in the examination as plaintiff’s exhibit 2 for identification.

“ Defendant’s Counsel: No objection. (Receipt admitted in evidence, marked Plaintiff’s Exhibit 2.) ”

There is no limitation of liability under plaintiff’s Exhibit 2, which is the receipt actually issued to the plaintiff by defendant at the time of the delivery of the coat to him. This is the one to control.

Moreover, even under plaintiff’s Exhibit 1, the receipt of June 1, 1948, there is no limitation of liability for loss or damage occasioned by negligence of defendant, or conversion.

In the situation disclosed by the record, I am unable to concur in a conclusion that the receipt, plaintiff’s Exhibit 2, given at the time of the delivery of the coat to defendant, should he ignored. It is founded on a good consideration and should he given full faith and effect.

I accordingly vote to affirm the judgment in the sum rendered.

Hammer, J., concurs with Hoestadtbr, J.; Eder, J., dissents in memorandum.

Judgment accordingly.