The action which resulted in the judgment for ultimate payment by the city involved only the sewer bonds themselves, and presented an entirely different question from that now before us. The same is true as to the determination in the proceedings for adjustment of the town obligations between the two corporate entities and the order of Mr. Justice Pound modifying same. Those sewer bonds had been issued to pay for an improvement entirely taken over by the city of Lackawanna. They would some time have to be paid. Because the property benefited was wholly within the city, it was held obligated to pay them with their interest. Neither that action or proceeding affords a precedent for a similar conclusion here.

The decision in the action out of which these judgments for costs grew is likewise unavailing as such a precedent. It was an equity action, brought in the interest of both the city and town. The referee, as was his right, found costs against the town and its contractors, but not against the city of Lackawanna. The plaintiff taxpayer contended that the officials of the old town of West Seneca and the sewer contractors were joined on a corrupt transaction. Under Lackawanna City Charter, § 271, the officials of the town of West Seneca continued to act for the city until it became fully organized on August 6, 1909. The action was brought July 1, 1909, and the answer of the town was served July 30th following. July 21, 1909, on its own application, the city was brought in as a party defendant, and soon thereafter served an answer, which admitted most of the allegations of the complaint and joined with the plaintiff in its prayer for relief. Shortly after this the power and duty of the town officers to act for the city ended, but, in the interval, they had joined issue with the plaintiff's contention, notwithstanding the sewer district and sewers were entirely within the city, and its taxpayers solely chargeable with their cost.

In view of these and other known facts, good faith demanded that the town join with the city in its support of the action; but it nevertheless continued its defense, with the result that, after a long and vigorous litigation, plaintiff succeeded, and the town, together with the contractors, were charged with costs in excess of $11,000. Whatever interest the town officials, as individuals, and the contractors, may have had in the matter was their own affair; it is certain their interest and that of the town were in reality antagonistic. If it chose to persist in the defense of a lawsuit contrary to its own interest, thereby subjecting itself to the possibility of costs being taxed against it, it must bear the burden thereof, and not be permitted to charge

(227 N.Y.S.)

same over to the city of Lackawanna, which supported the plaintiff in a successful prosecution.

We do not overlook that, when they joined issue in the action, the town officials were still legally acting for the city, and that ordinarily the costs then accrued might be for the city to pay. As compared with the whole, these are so small in amount, and the bad faith of the then town officials is so manifest, we do not feel that they should be segregated, but are, on the contrary, of the opinion that all should be borne by the town.

From what has been said, it follows that the report and order appealed from must be reversed, with costs, and new findings and order made, adjusting the costs as, and to be, in the entirety, against the town of West Seneca.

Order reversed with costs to appellant and petition and proceeding dismissed with costs to appellant. Certain findings of fact and conclusions of law disapproved and new findings and conclusions made. All concur.

1

(131 Misc. Rep. 599)

KOPETZKY et al. v. CUNARD S. S. CO., Limited.

City Court of New York, Special Term. March 5, 1928.

1. Carriers 62-Contracts of carriage must be just and reasonable. Contracts of carriage, like other contracts, must be just and reason

able.

2. Carriers 405(1)-Carriers by reasonable regulations may protect themselves against loss of baggage exceeding fixed sum, by regulations of which passengers know, or may be presumed to know.

Carriers of passengers, by specific regulations brought to knowledge of passenger, or of which passenger may be presumed to have knowledge, and which are just and reasonable, may protect themselves against loss of baggage exceeding fixed amount in value.

3. Shipping 167(2)—Carriage contract for ocean voyage, limiting carrier's liability for injury to baggage to certain amount, unless higher amount is declared, held not against public policy.

Contract for carriage of passenger on ocean voyage, providing that neither shipowner nor passage broker shall be liable for loss or injury to luggage beyond specified amounts, unless value of same in excess of For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

specified amount is declared at or before issuance of contract ticket, and freight at current rates paid therefor, held not against public policy.

4. Shipping 167(2)-Steamship passenger is assumed to know conditions of contract, and not to have regarded condition limiting carrier's liability for loss of baggage as unreasonable.

Passenger contracting for ocean voyage must be assumed to enter into contract with deliberation, and to know terms and conditions thereof, and by accepting contract and using ticket for voyage it is further assumed that passenger did not regard as unreasonable conditions of contract limiting liability of carrier for loss or damage to passenger's baggage to fixed sum, unless value was declared in greater sum.

5. Shipping 167(2)—Provision limiting ocean carrier's liability for injury to baggage to stated amount, unless greater value was declared, held not unreasonable.

Provision in contract of carriage of ocean carrier for round trip limiting carrier's liability for injury or loss of baggage to certain sum, unless value of baggage was declared in greater amount and freight paid therefor, was not unreasonable, as requiring passenger to declare, when leaving New York, value of trunk when returning from Europe, and was enforceable against passenger not declaring value.

Action by Samuel J. Kopetzky and another against the Cunard Steamship Company, Limited. On motion by plaintiffs to strike out first defense and answer. Motion denied.

Arnold Lichtig and Herbert A. Mossler, both of New York City (Arnold Lichtig, of New York City, of counsel), for plaintiffs. Lord, Day & Lord, of New York City, for defendant.

RYAN, J. Plaintiffs move to strike out the first defense and the answer on the ground that the provisions contained in the clause therein quoted "are unreasonable and arbitrary and therefore can be resisted by the passenger." In June, 1927, plaintiffs purchased of the defendant transportation from New York to Europe and return passage during the month of September. The complaint alleges damages to the contents of plaintiff's trunk to the extent of $2,664. The defendant's answer sets up a general denial and for a first and separate defense alleges that said contract of carriage contained the following clause:

"Neither the shipowner nor the passage broker or agent is in any case liable for loss of or injury to or delay in delivery of luggage or personal effects of the passenger beyond the amount of £20 for first class and £10

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(227 N.Y.S.)

for second or one class cabin passengers, unless the value of the same in excess of that sum be declared at or before the issue of this contract ticket, and freight at current rates for every kind of property (except pictures, statuary and valuables of any description, upon which 1 per cent. will be charged) is paid."

And further alleges:

"That plaintiff did not declare in writing any value of said trunk in excess of £20."

[1, 2] Contracts of carriage, like other contracts, must be just and reasonable. It will not be disputed that carriers of passengers, by specific regulations brought to the knowledge of the passenger, or of which the passenger may well be presumed to have knowledge, and which are just and reasonable in their character, may protect themselves against loss of baggage exceeding a fixed amount in value. The plaintiffs purchased the transportation in June and paid to the defendant for the return passage the sum of $950.50. The transaction we may therefore assume was conducted with care and due consideration. The contract of transportation was no small sheet of paper, and in display type states that it is "Passenger's Contract Ticket." It contained a great deal of printed matter, with the name of the vessel, ports of departure and arrival, and date written in, together with the words "In consideration of the sum of $950.50 paid in America" the persons named shall be provided with I class cabin passage in the ship named, with space "for luggage," etc. It further contained the names of the plaintiffs and their postal address in Europe. Then under "Notice to Passengers," "This contract ticket is subject to the following conditions" is the clause designated No. 5, above quoted. That the plaintiff understood it was a contract containing stipulations which would determine his rights with the defendant in relation to the carriage of his baggage on the return voyage is not questioned. But he says the clause was unreasonable, in that it required him to declare in June in New York what the value of his trunk would be in September, when about to embark from Cherbourg. The exact language employed in the contract limiting defendant's liability does not appear to have been passed upon in any reported case.

[3] The argument presented by plaintiff's counsel is ingenious, and he submits authorities which by analogy, it is claimed, support his contention of the unreasonableness of the clause under consideration. Certainly the wording is not against public policy. There was

no obligation on his part to purchase or for the defendant to sell return passage at that time. However, such a contract was made, and it seems but reasonable to say that the convenience of the plaintiff was served to the extent of assuring him return accommodations at a time and by a vessel of his own selection.

The defendant cites the case of Tewes v. North German Lloyd S. S. Co., 186 N. Y. 151, 78 N. E. 864, 8 L. R. A. (N. S.) 199, 9 Ann. Cas. 909. In that case the contract of passage contained a clause similar to the one under discussion, but with the additional words, "or at or before the delivery of said luggage to the ship," and the Court of Appeals held that to be a reasonable provision. Here we have a provision bare of the words constituting the alternative, and the plaintiff seeks to distinguish that authority because of the additional words contained in the clause referred to, in that the plaintiff was given the option of declaring the value in excess of £20 in France at the time of embarkation. But as was said in the prevailing opinion in that case (Werner, J.):

"There is a just and logical distinction between an ordinary railroad ticket, which may often be regarded as a mere token, and a passage ticket for an ocean voyage, the sale and purchase of which is usually conducted with such caution and deliberation as to invest the transaction with the elements of a contract, the terms of which the purchaser has ample opportunity to ascertain and understand" (citing cases).

[4] That the contract was entered into by the plaintiff with care and deliberation must from all the circumstances be assumed, and that he had knowledge of its terms and conditions must also be assumed, while at the same time opportunity was afforded him to refuse that stipulation if he considered it unreasonable when purchased in June. That he did not so deem it is apparent when he paid the substantial consideration mentioned, accepted the contract ticket and actually used same for the voyage. As was said in Fonseca v. Cunard S. S. Co., 153 Mass. 553, 555, 27 N. E. 665, 666 (12 L. R. A. 340, 25 Am. St. Rep. 660):

"It has often been decided, that one who accepts a contract, and proceeds to avail himself of its provisions, is bound by the stipulations and conditions expressed in it, whether he reads them or not. This rule

is as applicable to contracts for the carriage of persons or property as to contracts of any other kind."

A case somewhat analogous to this is Lindsey v. Maine S. S. Co. (Sup.) 88 N. Y. S. 371, in which plaintiff bought a round trip steam